AuthorO'Carroll, Siobhan A.
PositionFormerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act of 2018


In 2018, Steve Cheatham was serving his prison sentence for three bank robberies. (1) That fall, Steve was diagnosed with advanced-stage cancer. (2) Steve petitioned the Bureau of Prisons ("BOP") for compassionate release, a reduction in sentence available to terminally ill prisoners. (3) In practice, the BOP has denied or delayed the vast majority of such petitions: between 2013 and 2017, the BOP granted only six percent. (4) Steve's wife, Marie, closely followed the progress of federal criminal justice reform, hoping that new legislation could provide a mechanism for Steve's release. (5) At the end of 2018, a criminal justice reform bill did pass. The new law allowed Steve to bring his petition for compassionate release directly to a judge, rather than proceeding through the BOP's administrative process. The next day, the judge signed the order to allow Steve to return home. (6) But Marie's joy was short lived--Steve died later the same afternoon in a prison hospice facility. (7)

Compassionate release is a "safety valve" in the criminal justice system that allows for the release of prisoners in "extraordinary and compelling" circumstances. (8) As Steve's story illustrates, though, bureaucratic delays and unwarranted denials by the BOP have caused qualifying prisoners to die behind bars. (9) These failures affect the oldest and frailest people in the prison system, (10) a population segment that is rising as a consequence of mass incarceration. (11) Harsh sentencing laws with mandatory minimums, arising out of "tough on crime" and "war on drugs" policies of the 1980s, have led to the increasing warehousing of aging prisoners. (12) Currently, the number of federal inmates exceeds 150,000. (13) Of those inmates, over 9,000 are over sixty years old. (14) These inmates are especially likely to be eligible for compassionate release, some due to age alone, and others due to age-related infirmities. (15) As the average age of prisoners increases, so do the costs of incarceration. (16) Failures in compassionate release raise both humanitarian and fiscal concerns as federal prisons increasingly incarcerate ailing, elderly inmates who do not pose a risk to public safety. (17)

Lawmakers have recently revitalized compassionate release as part of a larger effort to address mass incarceration, through the First Step Act of 2018. (18) Previously, the BOP served a gatekeeping role for all compassionate release petitions. (19) Now inmates may bring their petitions directly to sentencing courts after exhausting the administrative remedies available through the BOP. (20) This change has increased the number of inmates who benefit from compassionate release. (21) Notably, however, this change has also led to adversarial litigation of compassionate release petitions. (22)

This Note considers the constitutional implications and policy concerns arising from the updated compassionate release mechanism. Part I of this Note traces the statutory development of compassionate release in the federal prison system. Part II examines the place of compassionate release within the federal constitutional scheme. Part III turns to the policy concerns surrounding representation by appointed counsel of compassionate release petitioners. Finally, Part IV proposes expanding the guiding definitional boundaries of compassionate release and concludes by arguing for an independent body in the executive branch to handle administrative compassionate release petitions.


    In the 1980s, lawmakers responded to public calls for a tougher stance on crime through a series of criminal justice reforms. (23) The Comprehensive Crime Control Act of 1984 included a major overhaul of federal sentencing through its constituent part, the Sentencing Reform Act ("SRA"). (24) The SRA's purpose was to reduce unwarranted sentencing disparity (25) and to create "certain and effective sentencing." (26) To this end, the SRA instituted determinate sentencing through sentencing guidelines, abolished parole, and authorized the creation of the Sentencing Commission. (27) The Sentencing Commission's sentencing guidelines constrained judicial discretion in order to reduce unwarranted sentencing disparity. (28) In practice, these reforms increased the average length of imposed sentences and increased the federal prison population. (29) Overall, since the SRA, the trend in the criminal justice system has been to send an increasing number of offenders to prisons while, concurrently, returning a decreasing number of inmates to society through early release mechanisms.

    To counteract the increased rigidity in the criminal justice system under the SRA, (30) lawmakers inserted two exceptions under which sentencing courts can modify terms of imprisonment. (31) Both exceptions require the court to consider the sentencing factors set forth in section 3553(a), (32) and only allow a reduction if it is consistent with "applicable policy statements" by the Sentencing Commission. (33) One exception applies only to inmates whose sentences were based on a sentencing range that was subsequently lowered by the Sentencing Commission. (34) Under this exception, the sentencing court may reduce the term of imprisonment upon motion of the Director of the BOP, upon its own motion, or upon the motion of the defendant. (35)

    In contrast, the other exception--the compassionate release mechanism--applies to all inmates. Through this "safety valve," (36) sentencing courts can reduce an inmate's term of imprisonment if "extraordinary and compelling" circumstances warrant such a reduction. (37) Compassionate release does not depend on good behavior in prison or rehabilitation; instead, the mechanism allows sentencing judges to consider a prisoner's complete circumstances and to determine whether such circumstances warrant a reduction in sentence. When originally created, the sentencing courts could review compassionate release petitions only upon motion of the BOP. (38)

    Because lawmakers intended compassionate release to introduce flexibility into an otherwise rigid sentencing scheme, the standard--"extraordinary and compelling"--is broadly phrased and subject to variable interpretations. The Sentencing Commission's policy guidelines provide guidance to sentencing courts. The Sentencing Commission has articulated a variety of qualifying circumstances, including the inmate's medical condition, age, family circumstances, and any other extraordinary or compelling circumstances. (39)

    Due to the BOP's gatekeeping role for compassionate release, (40) however, the BOP's interpretation of the "extraordinary and compelling" standard controlled which compassionate release petitions came before sentencing courts. The BOP used a narrower interpretation of the compassionate release standard than is authorized by the broad statutory language, and, indeed, a narrower standard than that articulated by the Sentencing Commission's policy statement. (41) The BOP effectively restricted the use of the compassionate release mechanism to prisoners who were terminally ill. (42) This approach eschewed many of the categories of prisoners whose particular circumstances otherwise qualified for compassionate release, as defined by the Sentencing Commission. (43)

    The BOP's narrow interpretation, as well as bureaucratic deficiencies, resulted in few compassionate release petitions coming before sentencing courts. (44) A Human Rights Watch report found that the BOP filed an "extraordinarily small" number of petitions in relation to the federal prison population, and that the number had not grown commensurate with the number of federal prisoners. (45) Overall, the report found that the BOP's rigid criteria resulted in significantly fewer requests for judicial consideration than the Sentencing Commission's policy statement would allow. (46) Other bureaucratic deficiencies contributed to the rare exercise of compassionate release. In an internal review, the Office of the Inspector General found that the BOP did not provide guidance to its staff about the criteria for compassionate release, resulting in ad hoc decision-making, (47) and failed to implement any timeliness standards for review of compassionate release petitions. (48) It further determined that the BOP's compassionate release program was "poorly managed and implemented inconsistently" and had likely resulted in eligible prisoners not being considered for release. (49)

    In 2018, lawmakers addressed failures in compassionate release in the First Step Act, (50) remarkably bipartisan legislation designed to reduce the federal prison population. (51) Proponents of the First Step Act lauded it as a success for the movement to end mass incarceration, although some critiqued it for failing to fully address systematic issues. (52) The First Step Act has three main components: correctional reform through the establishment of a new assessment system at the BOP; sentencing reform related to some federal offenses; and the reauthorization of the Second Chance Act. (53) In addition to these components, the First Step Act included some other criminal justice-related provisions. (54) One of these provisions sought to increase the use and transparency of compassionate release. (55) For instance, the First Step Act included new requirements regarding notification to petitioners and the creation of annual reports. (56) Most significantly, the First Step Act authorized inmates to petition sentencing courts directly for compassionate release, after exhausting administrative remedies. (57) Since the First Step Act's enactment, many more inmates have received compassionate release than otherwise would have without the reform. (58)


    A sentencing court may not modify a term of imprisonment once it is imposed. (59) Compassionate release is an exception to this rule. (60) However...

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