Courts Bolster Compassionate Release Under First Step

By Jody Godoy | July 19, 2019, 4:13 PM EDT

Among the thousands of inmates released because of reforms under the First Step Act, a small group of prisoners have been granted compassionate release this year, many of them taking advantage of a new provision letting them make their case for release in court.

On Friday, the U.S. Department of Justice announced results from the first seven months under the new law, which is aimed at reducing the federal prison population. Some 3,100 inmates were in the process of being released from federal prison on Friday after their sentences were reduced for good behavior, the DOJ said.

Since the law was signed in December, around 200 inmates have been allowed to transfer from prison to home confinement under another of the law's provisions. And 51 have been granted compassionate release, a numerically small but marked increase over the 34 inmates granted release in 2018.

However, only around half of those applications were granted by the DOJ's Bureau of Prisons. In the other half of cases, inmates won release from federal courts, a DOJ spokesman confirmed.

Before the First Step Act was passed, inmates denied compassionate release could not ask a court to weigh in. Now they are able to do so if the BOP has denied or not responded to a compassionate release application within 30 days.

David Gerger and his firm Gerger Khalil & Hennessy LLP represented two of the former inmates whom courts granted compassionate release under the new law. In both cases, the men had been diagnosed with serious cancers, applied for release, and received no decision from the BOP within 30 days.

When Richard Evans applied for release in January, he had served around two years of a five-year sentence for illegal opioid prescriptions. Evans, who once practiced oncology, had flagged what turned out to be a malignant melanoma on his neck in October. He still hadn't undergone recommended treatment for the cancer as of March, when he persuaded a court to grant his release.

"Without this new law our client would still be deteriorating in prison without treatment. Being able to go to court made all the difference," Gerger said.

In another case, a judge ordered Gary George, a 60-year-old man who pled guilty to possessing child pornography, released given his diagnosis of advanced lung cancer.

The DOJ's announcement on Friday also marked the start of inmates having their sentences recalculated for good behavior under the First Step Act.

One of the law's provisions increased the number of days by which a sentence can be reduced for good behavior. Previously, the number of days was effectively capped at 47, and went up to 54 under the law.

That provision was on hold until the DOJ completed its system for assessing a prisoner's risk of reoffending upon release.

The system rolled out on Friday is dubbed the Prisoner Assessment Tool Targeting Estimated Risk and Needs, or PATTERN. According to the DOJ, the system was developed in order to predict the risk of an inmate reoffending based on several factors, including their age, crime, and participation in prison training and rehabilitation programs.

It also lays the basis for a new category of credit, whereby prisoners will be able to participate in programs to earn the right to spend part of their sentence in a halfway house or supervised release, based in part on their risk level.

The DOJ said Friday that it had earmarked $75 million from its budget to implement the law through the end of 2019, though it will need to work with Congress to fund the law's programs going forward.

--Editing by Adam LoBelia.