I. Background

In 1984, Congress passed the Sentencing Reform Act (SRA), a major overhaul of federal sentencing. It abolished parole for prisoners who committed their offenses after enactment of the SRA, established limited good time credits,[13] eliminated parole, instituted determinate sentencing, and authorized the creation of the United States Sentencing Commission (USSC) to establish sentencing guidelines.[14]

Compassionate Release

Although Congress furthered the goal of finality in sentencing by eliminating parole and limiting the court’s jurisdiction over a case once a conviction has become final, lawmakers recognized that circumstances could arise that would render a final sentence unjust or unfair. They included “safety valves” in the SRA, authorizing federal courts to revisit sentences in a few specific situations and to reduce them if appropriate.

One of those safety valves, colloquially referred to as “compassionate release,” enables the courts to reduce sentences for “extraordinary and compelling” reasons.[15] Codified at 18 U.S.C. section 3582 (c)(1)(A)(i), it provides,

(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that—

(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction;… and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The Senate Judiciary Committee’s Report on the Sentencing Reform Act explained the need for this provision as follows:

The first “safety valve” applies, regardless of the length of sentence, to the unusual case in which the defendant’s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner. In such a case, under Subsection (c)(1)(A), the director of the Bureau of Prisons could petition the court for a reduction in the sentence, and the court could grant a reduction if it found that the reduction was justified by “extraordinary and compelling reasons” and was consistent with applicable policy statements issued by the Sentencing Commission.[16]

Congress recognized that many circumstances might arise that could warrant sentence reduction. Instead of elaborating in the statute the possible circumstances, Congress assigned that task to the USSC. [17] The only limitation placed on the Sentencing Commission was a caution that “rehabilitation alone shall not be considered an extraordinary and compelling reason.” [18]

The Senate Report noted, “The Committee believes that there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, [or] cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence.”[19]

The SRA gave federal judges the central decision-making role in compassionate release. First, courts have the authority to decide whether to grant a sentence reduction, even though the exercise of that authority is triggered by a BOP motion. Second, the statute requires the court to consider the factors enumerated in 18 U.S.C. section 3553(a) when making its decision. Section 3553(a), in turn, enunciates factors the courts are to consider at sentencing, including the severity of the crime, criminal history, and the purposes of punishment.[20]  

The legislative history underscores the paramount role of the court in compassionate release decisions. “The [SRA] … provides … for court determination, subject to consideration of Sentencing Commission standards, of the question whether there is justification for reducing a term of imprisonment in situations such as those described.”[21]The Senate Judiciary Committee signaled its views of the court’s role even more directly in a later section of its report:

The value of the forms of “safety valves” contained in this section lies in the fact that they assure the availability of specific review and reduction of a term of imprisonment for “extraordinary and compelling reasons”…. The approach taken keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.[22]

A Narrow Interpretation of Compassionate Release

In 1994, the BOP published new regulations for the use of its compassionate release authority.[23] The regulations acknowledge that compassionate release could be based on medical and non-medical circumstances. But in practice, and in internal guidance to staff, the BOP sharply limited the grounds for compassionate release to certain dire medical situations.

The 1994 regulations provide that the BOP may bring a motion to reduce the term of imprisonment under 18 U.S.C. section 3582(c)(1)(a) “in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” They also delineate the procedures to be followed by the Bureau in responding to prisoner requests for compassionate release. The specified procedures differ according to whether the prisoner presents medical or non-medical grounds for compassionate release. [24]

A July 1994 memorandum from then-BOP Director Kathleen M. Hawk to wardens (Hawk Memo) indicates that in practice, the BOP would not accept non-medical grounds for compassionate release. Instead, it would only seek sentence reductions in end-of-life and certain other grave medical situations:

The Bureau of Prisons has historically taken a conservative approach to filing a motion with the courts for the compassionate release of an inmate.… Until recently, our general guideline was to recommend release of an inmate only in cases of terminal illness when life expectancy was six months or less. Not many months ago, we extended the time limit to a one year life expectancy.… As we have further reviewed this issue, it has come to our attention that there may be other cases that merit consideration for release. These cases still fall within the medical arena, but may not be terminal or lend themselves to a precise prediction of life expectancy. Nevertheless, such cases may be extremely serious and debilitating.[25]

The 1994 regulations do not specify the factors the BOP should take into account in reviewing a prisoner’s request to be considered for compassionate release. The Hawk Memo not only limited compassionate release to medical cases, but it also directed wardens to “consider and balance” in each case a list of factors extraneous to a prisoner’s medical condition, including the nature and circumstances of the offense; criminal and personal history and characteristics of the prisoner; the danger, if any, the prisoner poses to the public if released; and the length of the prisoner’s sentence and the amount of time left to serve.[26] The Hawk Memo made a point of saying these factors were not “criteria” but rather “guidelines,” and even a prisoner who “met a majority of the … factors” might not be appropriate for release. Rather, “staff should rely on their correctional judgment,” documents, and verified information in deciding whether to recommend early release.”[27] It is clear from the Hawk Memo that the BOP considered its job to entail determining whether a prisoner should be given early release—in essence, whether it would recommend that the court order a sentence reduction.

Several of the factors the Hawk Memo assigned for warden consideration mirrored those that Congress had committed to the courts considering a motion from the BOP for compassionate release.[28] For example, courts, consulting 18 U.S.C. section 3553(a), are directed to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.”[29] Courts must also review the “seriousness of the offense” and ensure that the decision provides “just punishment” and “protect[s] the public from further crimes of the defendant.”[30] Congress gave no signal to the BOP that it should use those factors in determining which cases it would present to the courts.

In 1998, the Bureau adopted a compassionate release “Program Statement,” an internal version of the 1994 federal regulations. Like the regulations, the Program Statement focused primarily on the procedures the BOP is to follow, and it establishes different procedures for medical and non-medical cases. The Program Statement also includes a section not included in the 1994 regulations that describes the “program objectives” and “expected results” of compassionate release, including that “[t]he public will be protected from undue risk by careful review of each compassionate release request.”[31] These “objectives” and “results” statements, like the list of factors to consider in the Hawk Memo, reflect the Bureau’s view that it could and should incorporate public safety into its compassionate release decision-making process, even though neither Congress nor the 1994 regulations expressly authorized it to do so.

In 2006, the BOP published for public comment in the Federal Register proposed rules regarding compassionate release, stating that the proposed rules reflected its “current policy.”[32] The proposed rules said that a prisoner could be considered for a reduction in sentence motion only if the prisoner “suffers from a terminal illness with a life expectancy of one year or less, or a profoundly debilitating medical condition that may be physical or cognitive in nature, is irreversible and cannot be remedied through medication or other measures, and has eliminated or severely limited the inmate’s ability to attend to fundamental bodily functions and personal care needs without substantial assistance from others (including personal hygiene and toilet functions, basic nutrition, medical care, and physical safety).”[33]

The BOP explained that new rules were needed because it “has received letters and Administrative Remedy appeals from inmates who mistakenly believe that we will consider circumstances other than the inmate’s medical condition for reducing a sentence. Such is not the Bureau’s practice.”[34] The BOP considered the proposed rules a “clarification that we will only consider inmates with extraordinary and compelling medical conditions for [reduction in sentence] and not inmates in other, non-medical situations which may be characterized as ‘hardships,’ such as a family member’s medical problems, economic difficulties, or the inmate’s claim of an unjust sentence.”[35] The Bureau proposed that the title of the rules be changed from “Compassionate Release” to “Reduction in Sentence for Medical Reasons.”[36] 

The BOP received strongly critical comments on the proposed regulations from the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums (FAMM), the American Bar Association (ABA), and the Federal Public and Community Defenders, among others. The Bureau then attempted to draft less-restrictive regulations, embracing non-medical criteria—such as that outlined in the Sentencing Commission guideline adopted in 2007—that would reflect the comments it had received. By 2008, it had become apparent to the BOP that they were not going to reach a consensus with DOJ on a revised regulation. New regulations have never been adopted because the DOJ has been unwilling to agree to broader rules than those proposed in 2006.[37]

The United States Sentencing Commission Guidelines

Congress assigned to the USSC the responsibility for fleshing out what would be considered “extraordinary and compelling” reasons for a sentence reduction, but the years passed with no action by the Sentencing Commission.[38]Dismayed at the paucity of motions from the BOP,[39] in 2001 criminal justice advocates like FAMM and the ABA began urging the US Sentencing Commission to issue guidelines that would authorize a broad range of medical and non-medical bases for sentence reduction.[40]

In 2006, the USSC called for public comment on a draft guideline and in 2007 it held hearings. Most of the organizations that provided public comment or testified before the Sentencing Commission supported enabling the courts to make mid-course corrections in sentences for a variety of reasons.[41] The ABA, for example, supported reduction of sentences in exceptional circumstances, both medical and non-medical, including old age, disability, changes in the law, exigent family circumstances, heroic acts, or extraordinary suffering.”[42]

The Department of Justice had a very different view. In a 2006 letter signed by Michael Elston, senior counsel to the assistant attorney general, the DOJ warned the Sentencing Commission against adopting any policy inconsistent with the BOP’s narrow interpretation of compassionate release. “At best, such an excess of permissiveness in the policy statement would be dead letter, because the Department will not file motions under 18 U.S.C. 3582(c)(1)(A)(i) outside of the circumstances allowed by its own policies.”[43]

According to a former DOJ official, the 2006 letter “reflected longstanding Department policy with regard to compassionate release.”[44] The letter expressed the Department’s view that prisoners “should serve an actual term of imprisonment close to that imposed by the court in sentencing subject only to very limited qualifications and exceptions.”[45] The DOJ was willing to accept sentence reductions in certain cases of terminal illness or profound and irreversible incapacity because it believed such limited cases would not undermine the principles of certainty and finality in criminal sanctions that are reflected in the Sentencing Reform Act.[46] The Department also warned that broader guidelines “would be an incitement to prisoners to file more suits seeking to compel the Department to exercise its authority under section 3582 (c)(1)(A)(i)—in contravention of its own policies, judgment, and discretion—in order to get them out of prison before they have served their sentences as imposed by the court.”[47]  

It continued,

At a minimum this would waste the time and resources of the courts and the Department in dealing with meritless suits of this type, concerning an issue which simply should not be open to litigation. The risk also must be considered that some courts might be misled by such a discrepancy between the policy statement and the Department’s standards and practices into misconstruing the assignment of responsibility under the statute for seeking reductions of sentence, and might then enjoin the Department to seek such reductions under more permissive standards.[48]

The DOJ overstated the tension between compassionate release and ensuring finality of judgments. As FAMM pointed out in its response to the Elston letter,

Crafting a [compassionate release] policy statement consistent with congressional intent will hardly subvert the goals of the SRA. Congress specifically provided for a sentence reduction authority for extraordinary and compelling circumstances in the SRA. It included only one specific limitation: rehabilitation alone would not be sufficient. Had Congress been concerned that sentence reductions for extraordinary and compelling circumstances would undermine the goal of determinate sentencing, it would not have specifically provided for such a broad view of the potential reasons for sentence reduction.[49]

In 2007, the USSC issued its guideline for the courts, which essentially restates the statute, with the additional proviso that courts should not release prisoners when to do so would pose a public safety risk.[51] But the real work of the guideline is evident in the application notes that accompany it. Disregarding the exhortations of the DOJ, the USSC recognized a wide range of possible medical and non-medical situations that might constitute extraordinary and compelling reasons for release:

Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the following circumstances:

(i)The defendant is suffering from a terminal illness.

(ii)The defendant is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement.

(iii) The death or incapacitation of the defendant's only family member capable of caring for the defendant’s minor child or minor children.

(iv) As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (i), (ii), and (iii). [52]

The BOP has never directed its staff to use the USSC guideline as a basis for consideration of prisoner requests for compassionate release. When we asked BOP officials why the agency is unwilling to follow the broader USSC explanation of the kinds of circumstances that might be extraordinary and compelling, they explained that the guidelines are not binding on them. [53] While this may be true as a legal matter, it hardly answers the policy question. They have also noted that the DOJ is unwilling to accept as grounds for compassionate release the breadth of circumstances that the USSC accepts. [54]