Compassionate release—originally introduced into law by the Sentencing Reform Act of 1984 and recently modified under the First Step Act of 2018—permits incarcerated individuals in a federal prison to seek a sentencing reduction from their sentencing judge for extreme and extenuating medical, personal, familial hardship, or age-related circumstances or where the law has changed but has not yet been made retroactive.

Eligibility for Compassionate Release

All inmates in federal prisons are eligible for compassionate release, so long as they are able to demonstrate “extraordinary and compelling reasons” for a reduction in sentence. Prior to the ratification of the First Step Act in 2018, requests for compassionate release could only be filed by the Bureau of Prisons (BOP) on behalf of inmates that it deemed eligible. This left eligibility decisions in the hands of the BOP, rather than the sentencing court.

Congress addressed this concern through the First Step Act of 2018, which augmented the compassionate release process by permitting sentencing judges—as opposed to the BOP—to consider compassionate release requests filed by incarcerated inmates after all administrative processes had been exhausted with the BOP or when the BOP failed to act on a compassionate release request within 30 days (whichever came first).

These provisions provided within the First Step Act effectively removed the BOP as the primary arbiter of compassionate release requests and expanded the district court’s ability to review these requests independent of the BOP’s decisions. This represented a seismic shift in how compassionate release requests were adjudicated and resulted in a wave of motions and releases that began during the onset of the COVID-19 pandemic.

How Does Compassionate Release Work?

Compassionate release provides incarcerated individuals with the opportunity to petition the BOP and their sentencing court for a reduction in sentence when the individual can show “extraordinary and compelling reasons” for his or her release. “Extraordinary and compelling reasons” are not defined by federal statute, but the United States Sentencing Commission provides a non-exhaustive list of “extraordinary and compelling reasons” in USSG § 1.1B1.13. These “extraordinary and compelling reasons” for compassionate release fall into three distinct categories: medical reasons, non-medical reasons, and age-related reasons. Each of these categories require specific criterion to be met in order to receive a reduction in sentence.

Medical Reasons for Compassionate Release

To receive a reduction in sentence on medical grounds, the inmate must be suffering from a terminal illness—such as cancer, ALS, end-stage organ disease, or advanced dementia—or a debilitating medical condition. Terminal illnesses are those characterized as incurable disease, resulting in a life expectancy of 18 months or less. In the event of a terminal medical condition diagnosis, the Bureau of Prisons is required, within 72 hours of diagnosis, to notify the inmate’s family and representation of the condition and their eligibility to submit a request for reduction in sentence. The BOP is also required to allow for visits within one week of diagnosis and ensure that BOP staff assists the inmate in the drafting, submission and processing of any such requests.

Debilitating medical conditions are those characterized by incurable, progressive illness or injury, which render the inmate unlikely to ever recover and unable to maintain basic self-care. The inability to self-care includes permanent confinement to a bed or chair or partial confinement for those who spend at least 50% of walking hours in confinement. In addition to physical injuries, debilitating medical conditions also apply to cognitive defects, such as Alzheimer’s disease. In the event of a debilitating medical condition diagnosis, the BOP is subject to the same requirements to assist in the drafting, submission and processing of a request for reduction in sentence.

Non-Medical Reasons for Compassionate Release

Non-medical reasons for compassionate release include the death or incapacitation of a family member or death or incapacitation of a spouse or registered partner. Each of the non-medical reasons for compassionate release have their own criterion. In the event of the death or incapacitation of a family member caregiver, the inmate must establish:

• that an individual responsible for providing care and/or guardianship of the petitioner’s biological or legally adopted child was killed or severely injured;

• that an individual is the only family member capable of caring for the petitioner’s child;

• that an individual can provide official medical documentation, including an official copy of the death certificate (if applicable) and;

• that an individual can provide a clear release plan, which outlines housing and financial plans.

In the event of the death or incapacitation of a spouse or registered partner, the inmate must demonstrate that their spouse has suffered a serious injury, severe cognitive deficit, or death, via official medical documentation and/or death certification. Inmates are also required to demonstrate that the spouse or registered partner is, or would be, supportive of the inmate’s release and comfortable with their role as primary caregiver (in the event of incapacitation). In reviewing these requests, BOP will conduct a review of the inmate’s conduct while incarcerated, as well as any evidence that exists from pre-incarceration that speaks to an inmate’s capacity to function as a caregiver and/or spouse.

Age-Related Reasons for Compassionate Release

Depending on the circumstances of their conviction and sentence, many elderly inmates are eligible for compassionate release. Inmates classified as “New Law” elderly inmates, who were sentenced for a crime that occurred on or after November 1, 1987 and have served 30 years or more of their term of imprisonment, become eligible for compassionate release at the age of 70. In addition to “New Law” elderly inmates, those with medical conditions who meet the following criteria are also eligible for compassionate release:

• are age 65 or older

• suffer from a chronic medical condition

• experience deteriorating mental or physical health (as a result of the condition)

• are unlikely to improve with conventional treatment

• and have served at least half of their sentence

Elderly inmates at significant risk for debilitating illness may also pursue compassionate release for medical purposes.  BOP will take into account an inmate’s age at the time of offense, whether the condition existed prior to arrest and incarceration, and whether the condition was considered at sentencing.