A former St. Paul police officer federally convicted of using excessive force was mistakenly released from prison early, but he returned to custody and petitioned a judge for compassionate release. The judge denied his request Monday.

A jury in November 2019 found Brett Palkowitsch guilty of depriving Frank Baker of his civil rights on June 24, 2016, when he kicked Baker as the man screamed in pain with a police dog clamped onto his leg. A judge sentenced Palkowitsch to a six-year term in 2021.

U.S. District Court Judge Jeffrey Bryan wrote in Monday’s order that he “acknowledges that Palkowitsch’s unexpected return to prison after a brief reunion with his family is extraordinarily unusual and undoubtedly took an emotional toll on Palkowitsch and his family. The Court also acknowledges that the incarceration of a parent often creates a difficult situation in which the unincarcerated parent is made to support a household and children alone.”

But, Bryan continued, “Palkowitsch has not provided legal authority to support his particular request and has not established that the present circumstances are extraordinary or compelling in such a way that the compassionate release statute and governing policy permit the Court to release Palkowitsch from prison.”

Palkowitsch and five other officers were responding to an anonymous report about a fight involving an armed man, who was described as Black with dreadlocks and wearing a white T-shirt. Baker, returning to his East Side apartment, fit the general description but it turned out the 52-year-old was unarmed and not the suspect.

Baker later filed a federal lawsuit against St. Paul and the city agreed to a historic $2 million settlement in 2017.

A federal grand jury indicted Palkowitsch in 2019. He was charged with one count of deprivation of rights, a federal civil rights violation.

At his trial, Palkowitsch testified that he acted within the limits of the law and according to his training when he delivered three kicks to Baker, in an attempt to control a man he believed was an armed, uncooperative suspect. But three fellow officers who were at the scene with Palkowitsch testified otherwise.

COVID delayed sentence

Due to the COVID-19 pandemic, Palkowitsch wasn’t sentenced until May 2021 and remained out of custody on pretrial release for 842 days between then and his initial appearance, Bryan wrote in his order.

Palkowitsch self-surrendered and began serving his sentence at the Federal Correctional Institute in Ashland, Ky., in June 2021. After initial meetings with his unit team, he was told the Bureau of Prisons had given him 842 days of credit and a release date of April 2024.

Palkowitsch’s wife asked his appellate counsel to explain the credit calculation, who “informed her that, ‘after speaking with peers … and discussing current cases with staff members at various levels of the BOP,’ he learned that the credits were given to inmates who were not in-custody during the COVID-19 pandemic,” Bryan wrote in summary.

BOP released Palkowitsch from custody on May 2, 2023, less than two years after he’d begun his six-year sentence. “He returned home and enjoyed normal family life with his wife and two children,” Bryan wrote. Several weeks later, Palkowitsch was informed that BOP made an error. He was initially told he could serve the remainder of his sentence on home confinement, but then was told he had to return to BOP custody.

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“Palkowitsch and his family were shocked and were not given any clear explanation about what had happened,” Bryan’s summary continued. Palkowitsch turned himself in on June 27, 2023, and has been in custody since.

In a July 2023 letter to the court, a BOP senior deputy assistant director wrote that the agency “had mistakenly assumed that Palkowitsch had been in custody from the time of initial appearance on January 31, 2019, until his sentencing and, as a result, had allocated him 842 days of credit for time served. Because of this error, the letter stated, BOP had erroneously released him” and they “expressed regret for ‘this unfortunate error.’”

Palkowitsch, who is 37, is now in the custody of a Minnesota residential re-entry center, also known as a halfway house, which BOP uses for inmates who are nearing release.