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U.S. Sentencing Commission Engages on Conditions of Supervised Release and "Compassionate" Release

As an at large national appointee to the U.S. Sentencing Commission Practitioners Advisory Group (along with private bar defense counsel appointees from each federal circuit), I had a front row seat to Commission hearings last week concerning conditions of supervised release and probation and the criteria for a compassionate release or reduction in sentence from the Bureau of Prisons (BOP).

Conditions of supervised release/probation are currently set out at 18 U.S.C §§ 3563(a)-(b), 3583(d); U.S.S.G. §§ 5B1.3(a)-(d), 5D1.3(a)-(d). BOP compassionate release/sentence reduction provisions are currently set out at 18 U.S.C. §§ 3582(c)(1)(A), 4205(g); 28 C.F.R. §§  571.60 et seq., 572.40; U.S.S.G § 1B1.13. The BOP’s amended Program Statement 5050.49 (March 25, 2015), regarding compassionate release/sentence reduction, is found here.

The Commission’s proposed 2016 amendments on these topics, among others, are found here.

Although the Commission is amidst the 2016 amendment cycle (amendments will not be finalized and effective, absent Congressional objection, until November 1, 2016), here are some quick takeaways:

  • There is momentum for re-labeling as “special conditions” of release certain current “standard conditions” of release (e.g., conditions concerning child support and substance abuse) which are presently imposed in many cases. This would enable courts and parties to more thoughtfully consider the applicability of particular “special” conditions to the case and defendant.
  • Testimony before the Commission supported Probation Office disclosure in the Presentence Report (PSR) of recommended conditions of release/probation so that the court and parties have sufficient time to consider them rather than having to react on the spot at the sentencing hearing. Disclosure of conditions in the PSR seemingly is not a uniform practice across various districts.
  • There is a debate about how to frame the condition concerning a releasee’s obligation to respond to questions from the Probation Officer. The DOJ supports the current language: “the defendant shall answer truthfully all inquiries by the probation officer,” see U.S.S.G. §§ 5B1.1(c)(3),  5D1.3(c)(3), without reference to a Fifth Amendment right. An alternative offered by the Commission for comment is: “be truthful when responding to the questions asked by the probation officer.”  The Federal Defenders advocate clarifying that legitimate invocation of the Fifth Amendment is available and would not constitute a violation.
  • ·Compassionate releases or reductions in sentences are dependent on motion of the BOP, and the BOP’s general criteria are stringent: inmate must be age 65 and older; suffer from chronic or serious medical conditions related to aging; experience deteriorating mental or physical health substantially diminishing the ability to function in a correctional facility; conventional treatment promises no substantial improvement; and served at least 50% of the sentence.
  • Inmates age 50 and older are the BOP’s fastest growing and most costly cohort (30,962 inmates in FY 2013). But the DOJ Inspector General reports that the BOP files motions for comparatively few inmates annually under these provisions. Many inmate applications seem to “linger” within the BOP thwarting the opportunity for judicial reconsideration of the original sentence. Whether the Commission will broaden the Guidelines criteria for compassionate release/sentence reduction, and how that will interact with the BOP’s asserted jurisdiction in this area, remains to be seen.  

For defense counsel, consideration of conditions of release normally take a back seat to the more pressing issues of advocating for the lowest possible Guideline range and ultimate sentence. Issues of compassionate release/sentence reduction rarely surface on the day-to-day docket of most white collar practitioners. Nonetheless, these issues have caught the eye of the Commission; no doubt this interest will filter out over time, with varied effect, to the district courts, the BOP, the United States Probation Office and U.S. Attorneys Offices. This may present opportunities for defense advocacy, education and jawboning.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Ronald H. Levine is Chair of Post & Schell's Internal Investigations & White Collar Defense Group and former Criminal Division Chief at the U.S. Attorney’s Office in Philadelphia. He counsels and defends corporations, as well as directors, executives, professionals and others, confronting potential allegations of fraud or other misconduct at all stages of the government enforcement cycle.

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