Could New Compassionate Release Enhance Opportunities for Federal Inmates?

Under federal law, 18 U.S.C. 3582(c)(1)(A), a federal prisoner may file a motion for reduction of sentence seeking a “compassionate release” from penal custody. 

Prior to filing such a motion, the prisoner must exhaust available administrative remedies—a process that involves four stages:

  • Stage 1: A written request to the warden of incarcerating facility outlining the “extraordinary or compelling” reasons for release with specific information about prisoner’s place of panned residence, prisoner’s ability to support themselves, prisoner’s medical treatment information (if necessary), and plans to pay for any medical treatment (if necessary).
  • Stage 2: Depending upon the nature of the request—age, medical or non-medical—the (BOP) will evaluate the request under different criteria for each nature of the request.
  • Stage 3: the BOP will make a decision about whether the support the request with an agency motion to the court for a reduction of sentence. If the Bop denies the request, the prisoner can file an internal appeal.
  • Stage 4: If the prisoner’s appeal is denied or 30 day lapses without a decision from the BOP, the prisoner can file their own motion for reduction of sentence in the district court. The court will decide the motion based on applicable federal law, and if the motion is granted, the court can order the prisoner released from penal custody.

If the sentencing court in fact grants the motion, the court must resentence the offender to a term of probation or supervised release with or without conditions so long as the terms of the new sentence do not exceed the terms of the original sentence. The prisoner must satisfy two criteria to receive such a reduction based on compassionate release:

  1. Extraordinary and compelling reasons warrant such a reduction; and
  2. The prisoner is at least 70 years of age, has served at least 30 years in prison on the original sentence, and a determination has been made by the BOP that the prisoner is not a danger to the safety of any other person or the community.

There are two categories of “extraordinary and compelling reasons” for compassionate release: medical and non-medical.

A medical compassionate release requires a showing that the prisoner is suffering from a terminal illness, such as: ALS, cancer, advanced dementia, end-stage organ failure, or some other debilitating disease (an inability to self-care).

A non-medical compassionate release (such as “family circumstances), for example,) requires a showing that the primary caregiver of the prisoner’s biological or adopted child was killed or severely injured; that there is no other family member capable of caring for the child, and that offender has a clear release plan as the child’s caregiver which outlines the prisoner’s financial and housing capabilities.

The same essential criterion applies in cases where the prisoner’s spouse or registered partner has suffered a serious physical injury or severe cognitive decline that requires a caregiver. 

In addition to the 70 years of age and 30-year penal incarceration, compassionate release can also be granted when the prisoner is 65 years or older; is suffering from a chronic medical condition;  has experienced deteriorating physical or mental decline brought on by the condition; and is not likely to improve with conventional medical treatment; and has served as least half of their sentence. 

In response to an amendment of 3582(c)(1)(A) through the First Step Act of 2018 (FSA) encouraging the courts to increase the use of sentence reduction motions, the U.S. Sentencing Commission (Commission)  on April 27, 2023, at the direction of Congress, implemented guidelines that “describe” what constitutes new “extraordinary and compelling reasons” that warrant sentence reduction based on compassionate release. 

These new guidelines will become effective in November 2023.

The Commission pointed out that the FSA eliminated the BOP’s “gatekeeping function” of having to file sentence reduction motions in compassionate leave cases and replaced it with what are called “defendant-filed” motions, either with or without counsel. In other words, the prisoner can now on their own initiate the compassionate release process with a “defendant-filed” motion.

The FSA’s amendment not only keeps in place all the previous definitions of “extraordinary and compelling reasons” but extensively expands those definitions that give the courts greater guidance on how to treat compassionate release sentence reduction motions.

Under the current, more restrictive legal regime, a prisoner’s “rehabilitation” is not, by itself, an extraordinary and compelling reason that can be used to support a compassionate release sentence reduction. Under the FSA changes, however, rehabilitation can be considered “in combination” with other circumstances to find extraordinary and compelling reasons.

In addition to the rehabilitation change, the FSA changes add two new subcategories to a request for compassionate release: First, it adds two new grounds under a medical-based request that support a finding of extraordinary and compelling reasons; and, second, it adds two new grounds under a family-circumstances request that support those reasons. 

The new medical grounds include:

  1. The prisoner is “suffering from a medical condition that requires long-term or specialized medical care that is not being provided” and who, without that care, “is at risk of serious deterioration in health or death.”
  2. The prisoner, due to personal health and custodial status, “is at increased risk of suffering severe medical complications or death as a result of exposure to an ongoing outbreak of infectious disease or public health emergency” (such as COVID).

The FSA changes also include a new third category supporting extraordinary and compelling reasons; namely, a prisoner “has suffered sexual or physical abuse that was committed by or at the direction of a correctional officer, an employee or contractor of the BOP, or any other individual having custody or control” over the prisoner. 

This category was added at the suggestion of the Department of Justice.

These new Commission guidelines will significantly enhance a federal prisoner’s opportunity to secure a sentence reduction through the compassionate release program.


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