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What’s ‘Sufficient’ Rehabilitation for Compassionate Release?

by James A. Lockhart and Luke E. Sommer

In the relatively short history of compassionate release motions filed by prisoners, courts have consistently found that rehabilitation is an important element in determining whether or not relief is appropriate. See United States v. Johnson, 2022 U.S. Dist. LEXIS 129168 (D.D.C. 2022). And where there is no supporting evidence of rehabilitation in the record, courts have denied petitioners’ requests on the grounds that they pose continuing threats to the public and a risk of recidivation. United States v. Mejia, 2020 U.S. Dist. LEXIS 180206 (D. Haw. 2020). This makes some sense – having cancer or some serious medical condition that threatens your life is an extraordinary circumstance, but it does not compel a court to release a person whose release plan includes (1) checking in with probation, (2) buying a cellphone, and (3) robbing a bank.

The idea of putting someone back on the street who is likely to cause further harm is not something District Courts have embraced for what seem like obvious reasons. That said, what exactly is rehabilitation? Rehabilitation can, at a certain point, be grounds for compassionate release in and of itself. But at the opposite end of the spectrum, where does good behavior transition from not enough to just good enough?

These are important questions. Rehabilitation is not defined in the compassionate release statute – 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act – or 28 U.S.C. § 994(t). When a statute doesn’t define a term, the Supreme Court has directed to use the word’s ordinary meaning. See, e.g., B.P. America Production Company v. Burton, 549 U.S. 84, 91, (2006). As we wrote in our previous article in the June 2023 issue of Criminal Legal News, most Circuits generally point to dictionaries for guidance. According to the American Heritage Dictionary, rehabilitation is “to restore to health, or useful life, as through therapy and education.” Merriam-Webster’s Dictionary of Law defines rehabilitation as meaning “to restore (as a convicted criminal defendant) to a useful and constructive place in society through therapy, job training, and other counseling.” In general, rehabilitation is anything that helps you prepare for release and gives you the tools you need to remain in society without reoffending. 

The question of “when is rehabilitation enough” is more complicated. The answer is “it depends.” Whether we want to admit it or not, there are classes among offenders. Prisoners with convictions for murder, kidnapping, or sex-based offenses are generally treated differently than those who have been found guilty of so-called “lesser” crimes. This is the case in practice, if not in the law. Because while it seems like the law “should” be the same for everyone, in reality, it isn’t.

In some cases, records that would have qualified as going “beyond rehabilitation” have been rejected in the case of more serious offenses because the judge finds the conduct distasteful. A perfect example is United States v. Hollis, 2021 U.S. Dist. LEXIS 28772 (E.D. Cal. 2021), in which the Court denied the motion on the basis that there are no children in prison and therefore the defendant’s accomplishments and good behavior did not establish that he would not reoffend. See United States v. Asmodeo, 2020 U.S. Dist. LEXIS 106580 (S.D.N.Y. 2020).

While on the surface, this reasoning has some appeal, but it’s both misleading and wrong. It’s an example of the emotional reasoning that even seasoned judges will use when faced with topics that they find uncomfortable. The judge’s premise was that good behavior was not evidence of rehabilitation on the part of a sex offender because the offender did not have the opportunity to commit new crimes of the type for which he was convicted while in prison. While it sounds reasonable, it is painfully inaccurate. Although there are no children in prison, there are numerous cases of prisoners contacting their existing (or even new) victims, obtaining child pornography, or otherwise committing new offenses. See Velasquez v. Ahlin, 2018 U.S. Dist. LEXIS 69826 (E.D. Cal. 2018); United States v. Doe, 2021 U.S. Dist. LEXIS 12281 (D. Maine 2021). And even though there are no banks in prison, courts have found that prisoners with bank robbery convictions who have achieved rehabilitation are worthy of mercy. Why? Because while defendants couldn’t rob banks, they could easily steal from or rob other prisoners. They could act out in ways in line with the conduct that ultimately led them to prison in the first place.

But emotional reasoning or not, the judge who keyed in on the absence of children in prison made their way into the neighborhood of a good point even though they did drive past the right house. Being good is generally not enough for people convicted of sex-based offenses. The reality is that a large portion of sex offenders had relatively normal lives – on the surface. A recurring theme runs through the case law; in many situations, offenders were able to conceal their crimes from those around them. See Doe. So, there is some superficial logic to the idea that good behavior isn’t enough. That is, if you were “good” on the street, why would being good in prison matter? Would it be evidence of rehabilitation or further evidence of your ability to hide your misbehavior? It makes the standard for rehabilitation different for sex offenders than it is for most defendants.

And it isn’t just sex offenders who bear the burden of this unspoken double standard – the Supreme Court has made it clear that homicide offenders are in a class by themselves. See Kennedy v. Louisiana, 554 U.S. 407, 438. And despite the fact that murderers generally get sentences that are lower than the top range of those given to sex offenders, they do have a similarly elevated threshold for obtaining relief. If you take a casual look through the extant case law, murder cases where relief has been granted tend to have the highest word count. This makes sense because judges want the public to have a clear understanding of why they are letting someone convicted of murder out of custody and back into society.

So, what’s the standard, unspoken or not? What do you have to do to get relief? Keeping clear conduct is a start, and for many, it is enough. But the reality is that the more serious your offense conduct is, the more you will generally have to do to successfully petition for relief. Compassionate release, unlike habeas corpus or direct appeal, is discretionary. The law controls, but after a point, the court will be able to make a call largely on their gut feeling. And there isn’t much that anyone can say about it.

At that point, it is between you and your judge. Your job is to convince them that what you have done is enough. That raises two important points that we will be covering in future articles: (1) the power of narrative and (2) the importance of restorative justice. Telling a compelling story is a critical task in any compassionate release motion. If you submit a motion and it doesn’t convey why you should be receiving relief, chances are you won’t be. Judges aren’t looking for the legal authority that allows them to let someone out of prison or reduce their time. They already have that. Under current precedent and the proposed § 1B1.13 policy statement, a District Court Judge (in most Circuits) can provide relief for practically anything.

No, this isn’t about providing citations to favorable case law that allow them to grant you mercy; it’s about telling a story that convinces them that they should. And part of that is doing something – anything – that will protect your victim class and prevent future crimes. The Alternatives to Violence and Victim Impact classes offered in the BOP, youth intervention and community outreach initiatives, and other evidence-based recidivism reduction programs aimed at bridging the gap between offenders and their victims are critical points that judges need to see. Because let’s be real – there are a lot of ways in which prisoners are given a raw deal, but there are also a lot of ways in which we do not live up to our own potential. Putting in the effort to rebuild ties with the community and repair relationships is a key way of showing your judge you are serious about getting out and staying there.

Overall, the easiest way to think about rehabilitation is this: start with yourself. Get an education. Get a stable job in your institution and earn positive work evaluations. In general, find the holes in your life where your prosecutor and judge pointed out that you were lacking. And then fill them. And above all else – document it. If you were advised to take drug education classes, then be sure to take drug education classes and file the certificate. Finish your GED. Study the law. Take psychology programs and then ask for the related records. Have supervisory officers send notes to your case manager documenting your good behavior and positive accomplishments (see BOP Program Statement 5840.04 for more information on this process).

That’s the general basis, the foundation on which you will build your future. But, like we said, for certain classes of offender, that won’t be enough. For various reasons, your judge will be leaning towards turning you down. The onus is on you to tip the scales in your favor. And to do that, the focus of your rehabilitative efforts will – over time – move from focusing on your education and your personal growth and transition towards helping others. This is the holy grail, the key secret that every truly successful compassionate release case entails. The narrative in those cases tells the story of a person who started out broken, who worked hard and through force of will, open-mindedness, and humility accepted help, before ultimately turning it into a new lease on life. That story? It commands action. It compels.  

Rehabilitation is common. And it is also necessary. You may have the most extraordinary case in the world, but if you can’t convince your judge that you are a completely (or even substantially) changed person who poses no continued risk to society, that is going to be an extraordinary story that you get to tell other prisoners.

Luke Elliott Sommer is a former U.S. Army Ranger who is incarcerated because of a PTSD related event. He is presently halfway through his BSc in Psychology and has a novel ready for release. published his article titled “Inmates Need Internet to Prepare for Life After Prison.” He works in the education department mentoring prisoners to pass their GED, and he was a successful pro se recipient of a Compassionate Release case. 

James A. Lockhart is also working on a Psychology degree and is in the process of completing his first novel. He and Sommer help other prisoners write and submit Compassionate Release motions and other legal documentation.   



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