What Is Compassionate Release?

“Compassionate release” refers to the reduction of a federal sentence because of “extraordinary and compelling reasons.” The name calls to mind an inmate’s immediate release from prison but the statute is not so limited. Courts have authority to shorten a sentence without reducing it to time served. The language of the statute arguably permits compassionate release of former offenders in custody outside of prison, such as a halfway house or home confinement, although there is less case law on this issue.

Can Former Offenders Request Compassionate Release?

Yes. Until a few years ago, only the Bureau of Prisons had the authority request compassionate release from a court. The BOP very rarely exercised this authority, however. As a result, in the First Step Act of 2018, Congress authorized any federal inmate to seek a reduced term of imprisonment from the courts.

How Does A Former Offender Seek Compassionate Release?

First, an ex-offender must request that the Bureau of Prison seek compassionate release on his behalf. Some courts have made an exception to this requirement under exceptional circumstances or when doing so would be futile.

If the BOP declines, an inmate has two options. First, he may fully appeal the BOP’s refusal. Second, he may wait 30 days from the date that the warden of his facility received his request from compassionate release. Courts have held that waiting 30 days is sufficient, even if the warden denied an inmate’s request and the inmate did not appeal. Once an inmate has completed either, he may ask the court that sentenced him to reduce his sentence.

Generally, an inmate is not required to make the same arguments to the BOP as to the court. Even so, it is best practice to do so when possible.

What Is Required for Compassionate Release?

There are many requirements for compassionate release: there must be “extraordinary and compelling” reasons to reduce the defendant’s sentence; that sentence reduction must be consistent with the Sentencing Commission’s policy statements; and the sentencing factors must support that reduction.

What Are “Extraordinary and Compelling” Reasons for a Sentence Reduction?

The answer varies greatly based on where in the country one was sentenced. There are several cases that have been submitted to the Supreme Court on this issue. Ex-offenders in favorable sentences should try to submit their requests as soon as possible, in case the Supreme Court takes on these cases and narrows the range of “extraordinary and compelling” reasons.

The U.S. Sentencing Guidelines lists three reasons. First is illness. A sentence reduction may be warranted for a terminal disease, or for a physical or mental condition that prevents an inmate from caring from himself in prison. Second, a sentence reduction may be warranted for an inmate whose health is suffering as a result of old age, although only if he has already served a substantial portion of his sentence. Third, an inmate may be released due to family circumstances. According to the guidelines, this means the incapacitation of a spouse or the need to care for a minor child. All of these reasons are grounds for compassionate release anywhere in the country. They are the only grounds for compassionate release in Alabama, Florida, and Georgia.

Many courts have adopted a broader approach. Some of these courts, however, are prohibited from considering whether Congress has subsequently reduced the sentence for the crime of conviction. In these circuits, such a reduction is not considered grounds for compassionate release unless the change in sentence is retroactive.

Courts elsewhere in the country may grant compassionate release for any reason they consider extraordinary and compelling. They often consider factors such as rehabilitation, youth at the time of offense, sentencing disparities with codefendants, whether a similar defendant today would receive the same sentence, and the length of the sentence in absolute terms.

Is Risk of COVID-19 Grounds for A Sentence Reduction?

Throughout most of 2020 and much of 2021, inmates were frequently granted compassionate release based on increased vulnerability to COVID-19. Courts have been much more hesitant to grant compassionate release to inmates who have been vaccinated, or who could have been vaccinated but chose not to be. Nevertheless, courts do sometimes grant compassionate release of vaccinated inmates.

What Kind of Defendants Are Eligible for Compassionate Release?

Before granting compassionate release, courts must consider whether doing so would be consistent with the sentencing factors. This means that courts are less likely to grant compassionate release for defendants with a long criminal history, who have committed violent crimes, or who have served little of their sentence. Conversely, courts may consider an offender’s good conduct since conviction as grounds supporting compassionate release.

The Sentencing Guidelines require defendants to prove that they are not a danger to the community. Strictly speaking, courts needn’t do so if they are not bound by the Guidelines, but courts typically do. Regardless of how they describe the test, courts are unlikely to grant compassionate release if they think that a former offender will go on to commit further offenses.

The above may seem disheartening but former offenders should retain hope. The First Step Act “permits a district court to reduce a sentence in ‘any case’—not just cases where a sentence has been substantially served; not just in cases involving low-level or non-violent offenses.” District courts have reduced sentences even for severe crimes. For example, Burnham & Gorokhov has helped two inmates reduce murder sentences from life to 30 years.

How Could Compassionate Release Change in the Near Future?

The law of compassionate release will continue to change. For many defendants, that law is currently as favorable as it is likely to become.

A number of inmates have appealed unfavorable decisions to the Supreme Court. At least two have appealed the decision that courts may not grant compassionate release based on non-retroactive sentencing changes. At least one has appealed the decision that district courts are bound by the sentencing guidelines. Favorable decisions by the Court could greatly benefit inmates in these circuits. Unfavorable decisions, however, could seriously restrict grounds for compassionate release throughout the country.

Whether or not the Supreme Court takes on those cases, and however it rules if it does, the grounds for compassionate release will eventually become narrower. Decisions on compassionate release must be consistent with the policy statements issued by the U.S. Sentencing Commission. At present, the Sentencing Commission has not issued any applicable statements. Eventually, however, it will do so. This policy statement is likely to narrow the available grounds for compassionate release.