How Far We’ve Come: The Rise of Compassionate Release

By Sonora Bostian-Posner and Shanna Rifkin

On Thursday, February 23, the U.S. Sentencing Commission will hold a hearing during which invited witnesses will speak to proposals to amend the compassionate release policy statement in the Sentencing Guidelines. That policy statement is in dire need of amending — it hasn’t been updated since 2018. The Commission will vote sometime before May 1 to finalize amendments to the guidelines after considering comments from the public about the proposals.

This hearing marks a turning point for compassionate release. Compassionate release seems simple on paper: individuals may face circumstances while incarcerated that change the nature of their sentence, such that continued incarceration is no longer just. Take, for example, a person who is terminally ill. Under compassionate release, that person can ask to be released early to avoid dying in prison alone.

Since 2018, compassionate release has changed dramatically. Before 2018, cases for compassionate release had to be approved by the Bureau of Prisons (BOP). But the BOP rarely approves these cases — on average, they only approve 24 a year. People have literally died while waiting for the BOP’s response. But now, thanks to the First Step Act, individuals can file their motion for compassionate release directly in court before their sentencing judge. Over the course of the past five years, compassionate release went from a rarity to a lifeline. Over 4,000 people were released from prison during COVID and beyond.

But the future of compassionate release depends on the outcome of the Commission’s amendment cycle. Why? Well for the past five years, the Commission has been defunct, and unable to update the guidelines to reflect the fact that prisoners can bring their own motion forward. The Commission has also been unable to expand on what circumstances can be “extraordinary and compelling,” one of two legal hurdles a person must pass before a judge can grant their release.

During this five-year time period, without an updated Guideline, courts have been able to decide on their own, in their own practical wisdom, what constitutes an extraordinary and compelling circumstance that warrants a reduced sentence. But once the Guideline is updated and published, courts will need to abide by what that Guideline says.

How might this impact people? For starters, in some courts today, prisoners can argue that the sentence they received is inequitable because it can no longer be imposed due to reductions made by the First Step Act. Some people’s sentences, if they were tried today, would be reduced by decades, or even a century. The Commission is considering adding this very scenario as a ground for compassionate release — when the law has changed and the sentence is no longer equitable. This would be a great change!

One of FAMM’s core campaigns is to take what we have learned from the past five years and use those lessons to update compassionate release, providing more opportunities for relief from unjust sentences. FAMM prepared a report detailing the promise of compassionate release in our country, sharing the stories of people who were released because of a change in the law: These peoples’ fates could have been very different if courts could not consider changes to the law as a ground for compassionate release. Many more people just like them have their future hanging in the balance.

Thursday’s hearing with the Commission will seek input on the proposals to further expand compassionate release at the federal level. Besides excessive sentences, proposals for expansion include early release for people who have been sexually assaulted in prison (a prevalent problem we’ve covered before), and people who have received inadequate medical care in the BOP, among others.

The Commission’s proposals are sweeping, and they are a broad endorsement of FAMM’s advocacy to expand compassionate release. But what happens in the end remains to be seen. We hope that the final Guideline amendments will reflect the lessons of the past five years: Compassionate release works, and people released from prison are succeeding.

Sonora Bostian-Posner is FAMM’s Director of Digital Communications. Shanna Rifkin is FAMM’s Deputy General Counsel.