Introduction: A Loyal Prison Law Blog Reader Writes

Earlier this week, a loyal Prison Law Blog reader presented a situation to us and asked for our help. The reader said that his elderly family member, who’s currently incarcerated in the Federal Bureau of Prisons on a crack cocaine-related offense, had served 24 years in prison — has maintained a clean disciplinary record — and just turned 72. The question was simple, and a good one, too: “Is there any way that he can petition to be released due to his age and the length of time he’s been in prison?” While there is no easy answer to this situation, a discussion of the applicable regulations at hand is warranted. This blog post will provide a top-level overview of early release opportunities for elderly offenders who are incarcerated within the Federal Bureau of Prisons.

The Regulation At Hand: 18 U.S.C. § 3582 (c)(a)(A)(ii)

To start, there is a law that specifically allows for the release of elderly offenders incarcerated within the Federal Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A)(ii) provides that the sentencing court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment for a defendant who is “at least 70 years of age, has served at least 30 years in prison . . . for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community . . .”*1 As such, there is regulation and precedent for elderly offenders to be released early, but rarely do facts combine into a perfect storm where the motion or request would be granted.

The Vehicle: Program Statement 5050.48

Federal Bureau of Prisons Program Statement 5050.48 (April 22, 2013) governs requests for early release “where there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” This provision carries out the provisions of 18 U.S.C. § 3582(c)(1)(A)(i), which allows for sentence modifications (as described above), when “extraordinary and compelling reasons warrant such a reduction.” Again, this is done upon motion of the Director of the Federal Bureau of Prisons, and history says it usually addresses cases of impending death or serious incapacitation.*2 However, the 2013 amendment to the policy deleted these conditions as a {requirement}, and, certainly, the language of the statute and the regulation suggest that it could be used in the case of an elderly, otherwise healthy prisoner.

Elderly Offender Home Detention Pilot Program

The Elderly Offender Home Detention Pilot Program Operations Memorandum No. 003-2009 (5392) was scheduled to expire in 2011 (whether it did is not known). Inmates 65 and older who have served more than 10 years and 75 percent of their sentences can be assigned to home detention. Those convicted of a “crime of violence” or a sex offense are prohibited from the program, as are those with a history of escape from a BOP facility.*3 A detainer acts as a preclusion from program eligibility. Those who feel that they might qualify under these limited circumstances are advised to review Operations Memorandum No. 003-2009 to learn about the pilot program. If they believe they qualify, they should direct an inmate-to-staff email or inmate request-to-staff (“Cop Out”) to their case manager or to the legal technician at their prison to inquire if the program is still in effect.

Conclusion: A Sentence is a Sentence

As you can see, early release from prison due to being elderly or very ill is not a given, and there is a very high bar even if the federal prisoner would otherwise qualify. But there is cause for hope. After reading this, if you know someone in federal prison and feel that they qualify for one of these programs, drop us a line and we’ll review the case. Make sure to clarify what they are in prison for, what their prior criminal convictions are, their age, their disciplinary history, and the amount of time they have served and the amount of time they were sentenced to. This information will greatly assist in the review process. As always, the Prison Law Blog is here to be of assistance however we might, and we never charge a fee for helping our readers. We do this for a passion, not for a paycheck.

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*1-Such releases are rare, and no exceptions as to requirements are permitted.

*2-Such a request was made at FCI Petersburg in 2010. The 80-year-old man making the request was wheelchair-bound and wanted to die at home with his family. His request was denied because he was said to have been a “drug kingpin” back in the early 1980s. Even the man’s correctional counselor signed on supporting the program’s applicability and use in the instant situation. Shortly after the request was denied, the man was transferred to hospice at FMC Butner and died shortly thereafter. As such, just because a federal prisoner is literally confined to a wheelchair and on death’s doorstep doesn’t necessarily qualify them for such an early release.

*3-According to the Operations Manual, “[a]n inmate currently serving a term of imprisonment for a U.S. Code, or D.C. Code felony, criminal conviction that is a crime of violence is not eligible to participate in the pilot program, pursuant to Section 231(g)(5)(ii) of the Act. In addition, an inmate who was previously convicted of a U.S. Code, D.C. Code, or State ‘crime of violence’ is not eligible to participate pursuant to Section 231(g)(5)(iii) of the Act.” As such, many offenders will be restricted from potential program placement due to their instant and past offenses or the characteristics thereof.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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