For the Defense - Vol. 5, Issue 3 - 54

Just as troublingly, if again the BOP was a country, it would have the most deaths from COVID-19
per 100,000 population than any of the top ten most infected countries on earth (see chart above).
While the BOP may be doing all it can to address
the pandemic and protect inmates, it simply is a futile
exercise if the number of inmates is not dramatically
reduced and quickly. It therefore is incredibly
troubling that this far into the pandemic, there are
99 of the 204 BOP institutions, including privately
managed facilities, that still are over their rated
capacities as of August 6, 2020.12

Compassionate Release-The Mechanics
Step One is for the inmate or someone on his or
her behalf13 to request compassionate release of the
warden at the institution in which he is incarcerated.
If done by the inmate, this generally is done in writing
via a "cop-out" (a BOP form called an Informal
Request to Staff Member). Importantly, the inmate
must use the magic words "compassionate release."
If the Warden, upon an investigation of the request
determines that the request warrants approval,
the Warden shall refer the matter in writing with
recommendation to the Office of General Counsel.
Program Statement 5050.50 §571.82.
Step Two is where it gets tricky. The statute
requires 30 days to lapse from the time the inmate
first requests compassionate release of his warden
before filing a motion for the same directly with the
sentencing judge. Early in the pandemic, inmates were
either skipping Step One altogether, or not waiting
the full 30 days prior to filing the motion and, while a
54

For The Defense l Vol. 5, Issue 3

few inmates were successful, the bulk were not, and
the case law now appears to recognize no exceptions
to Step One.
The question becomes "What does 'lapse' mean?"
Obviously, if an inmate requests compassionate release
of a warden, and the warden does not respond within
30 days, then an inmate may then move his sentencing
judge for compassionate release. The case law is
uniform on this uncontroversial point. But what if
the warden responds within 30 days and denies the
inmate's request? Some courts have held that it does
not matter. Once 30 days have elapsed, an inmate is
free to seek relief from his sentencing judge, period.
But a few district courts within the Third Circuit have
held that a denial requires the inmate to exhaust his
administrative appeals through the BOP bureaucracy,14
which can take months.
An inmate who is not satisfied with the
Warden's response may submit an Appeal on
the appropriate form (BP-10) to the appropriate
Regional Director within 20 calendar days of
the date the Warden signed the response. An
inmate who is not satisfied with the Regional
Director's response may submit an Appeal on the
appropriate form (BP-11) to the General Counsel
within 30 calendar days of the date the Regional
Director signed the response. . . . Appeal to
the General Counsel is the final administrative
appeal.15

For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3