Compassionate Release
What is Compassionate Release?
Who Qualifies for Compassionate Release?
To qualify for Compassionate Release, an inmate must meet three primary conditions:
- “Extraordinary and compelling reasons” for release must exist.
- Inmates must not be a danger to others.
- The Court must consider the factors under 18 U.S.C. § 3553(a).
- Inmates must have met the exhaustion requirement.
1. Extraordinary and Compelling Reasons for Compassionate Release
Although “extraordinary and compelling reasons” traditionally referred to terminal illness, the Sentencing Commission’s policy statement (Section 1B1.13) gives broader guidance on what qualifies. Therefore, the policy statement outlines four categories of “extraordinary and compelling reasons”.
Medical Circumstances. This includes:
-Inmates with terminal illnesses;-Inmates with serious health problems that can’t be adequately managed within the prison;
-Inmates with serious functional/cognitive impairment or deteriorating physical/mental health because of aging that prevents them from being able to engage in self-care and from which they are not expected to recover;
-Inmates with medical conditions that require long-term or specialized medical care that is not being provided and without which the inmate is at risk of serious deterioration in health or death and
-Inmates housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority where due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause that cannot be maintained in a timely manner.
Age. This includes inmates over 65 with deteriorating health and who’ve served over 75% or 10 years of their sentence.
Family Circumstances: This can mean one of several things:
-The death or incapacitation of the caregiver of the inmate's minor child or the defendant’s child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition.
-The incapacitation of the inmate's spouse or registered partner when the inmate would be the only available caregiver for the spouse or registered partner;
-The incapacitation of the inmate's parent when the inmate would be the only available caregiver for the parent.
-Circumstances similar to the above for someone, that while not an immediate family member, has a similar relationship to that of an immediate family member.
Victims of Abuse: This includes inmates that were victims of sexual abuse involving a sexual act or physical abuse resulting in "serious bodily injury." The abuse must have been perpetrated by or at the direction of a correctional officer, an employee or contractor of the Bureau of Prisons, or any other individual who had custody or control over the inmate and the misconduct must be established by a conviction in a criminal case or a finding "or admission of liability in a civil case, or a finding in an administrative proceeding, unless such proceedings are unduly delayed or the defendant is in imminent danger."
Other Reasons: Other circumstances that, when considered by themselves or together with any of the reasons described above are similar in gravity to the above.
Unusually Long Sentence: If an inmate received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the inmate's individualized circumstances.
Special Note: Stacked 851’s and Stacked 924(c) Enhancements as extraordinary and compelling circumstances post-2023 Amendments
Several inmates have enhanced punishments because of the presence of one or more 924(c) charges or 851 prior convictions. The FIRST STEP Act lessened those enhanced penalties significantly.
While even the Amendments In Brief surrounding the 2023 amendments indicate that the "unusually long sentence" provision was made in order to provide relief on these matters, several Courts have determined that this portion of the amnedment should not apply to inmates. The law on this matter is changing and you should consult an attorney before filing
2. Is the Compassionate Release Claimant a Danger to Others?
To determine whether an inmate might pose a danger to an individual or community upon release, the court generally looks at the factors in 18 U.S.C. 3142(g), part of the Bail Reform Act of 1984. Factors there include:
- Nature and circumstances of the initial offense.
- Weight of the evidence against a person.
- History and characteristics of the person.
- Nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
- Whether drugs or guns were involved in the alleged offense.
3. 3553(a) Sentencing Factors and Compassionate Release
The Compassionate Release Statute also indicates that the court must consider the factors in 18 USC 3553(a). These are the same factors that are considered by a court in sentencing a person. Some of them are similar to the factors under 18 U.S.C. 3142(g). Ultimately, these factors consider whether a person would be sentenced the same way today as they were at the time. They include:
- Nature and circumstances of the offense and the history and characteristics of the defendant;
- Need for the sentence imposed to:
- reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- afford adequate deterrence to criminal conduct;
- protect the public from further crimes of the defendant; and
- provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- Kinds of sentences available;
- Sentencing range established for—
- [the guideline range and criminal history category in the case]
- Any pertinent policy statement
- Need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- Provision of restitution to any victims of the offense.
4. Exhaustion of Administrative Remedies
The exhaustion requirement basically requires that an inmate has reached out to the Bureau of Prisons to request Compassionate Release before moving to federal court.
To fulfill this requirement, an inmate should firstly write to the Warden of their institution outlining the reasons they feel Compassionate Release should apply them. If the warden denies this request or if 30 days pass, an inmate is free to file a motion with federal court.
We also recommend that inmates engage in the “administrative remedy process” as part of this section after they receive a denial from their Warden. This includes a BP-9, BP-10, and BP-11. Although not strictly required, it is further evidence that an inmate has exhausted their remedies.
Important Evidence for a Compassionate Release Motion
Although there is no silver bullet for these motions, our review of the case law indicates that the following things are important in these motions.
Medical Records
If your request has anything to do with your medical condition, then you must include your medical records. Usually, these records should all be obtained before you file with the court. In most cases, an inmate can request their BOP medical records themselves. If you must request these records through your lawyer, then the records can take several weeks because you and your attorney must complete an ID Verification and a FOIA request first. If, for some reason, you have trouble obtaining your records from the BOP, then this should be documented as well. You should note the names, dates, and positions of those who denied you access to your records.
BOP Records
To prove that your post-incarceration conduct involves evidence of rehabilitation, numerous documents from the BOP should be included: Your ISDS Report, IRP, Team Sheet, Individual Reentry Plan, certificates of any courses or leadership positions, and your PATTERN score. Importantly, these things help to demonstrate the third essential assertion that must be proven in a compassionate release case: rehabilitation.
Release Plan
A release plan outlines what you would do if released. Where will you live? How will you support yourself? What will you do? It should also include support letters from your loved ones attesting to your plan and discussing how they will support you after release. While letters of support frequently include testimony to your rehabilitation or strength of character, it is also equally important that these letters give concrete examples of ways in which your community will help you avoid recidivism and continue rehabilitation. Can they offer you a place to stay? A job? Moral support? All of this helps to reinforce your motion and demonstrates community “safeguards” that will help you keep on the right path after release. Full names and contact information for people writing these letters for you should be included.
Strict Conditions of Supervised Release
as an Argument in a Compassionate Release Case
Our research has indicated cases where individuals sought and received compassionate release and were assigned strict terms and conditions of supervised release as part of their reduction in sentence. This could even include home confinement for a period of time or adding an additional period of supervised release equal to the remaining amount of time left inside the walls of the prison.
Example: An inmate has been sentenced to 10 years in prison and five years of supervised release. We seek compassionate release after 7 years (and as such, 3 years left on their sentence). The court grants said compassionate release but adds three years (the same three years that he would have spent inside before being granted release) to his supervised release term.
Of course we will discuss your options with you but we believe that this might lead to more consideration of your compassionate release case.