For the Defense - Vol. 5, Issue 3 - 51

The State of Compassionate
Release

Alan Ellis and
Mark H. Allenbaugh

T

his article reviews the current state of play
in the quickly developing law of federal
compassionate release. Compassionate
release is one of the few grounds a federal judge
can reduce a previously imposed sentence to time
served. Considering the on-going pandemic, it is
being sought at a record pace. We discuss some
of the major issues litigators should be aware of
when moving courts for compassionate release.

A Brief History of Compassionate Release
At the federal level, once a sentence is imposed,
a federal judge has very limited authority to
re-address the sentence absent a remand by an
appellate court.1
Pursuant to 18 U.S.C. § 3582(c)(1)(A), however,
after "considering the factors set forth in section
3553(a)," a judge may "reduce [an inmate's] 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)"
where (1) "extraordinary and compelling reasons
warrant [release]," (2) "the defendant is not
a danger to the safety of any other person or
the community," and (3) "such a reduction is
consistent with applicable policy statements
issued by the Sentencing Commission." This is
known as "compassionate release" and has been
available since the mid-1970s.2 In other words, a

judge can reduce an inmate's sentence to timeserved plus supervised release. We have found
it useful to suggest that the Court make home
confinement for a period of time as a condition
of supervised release.
Until relatively recently, only the Director of
the Bureau of Prisons (BOP) could move the
sentencing judge for compassionate release.
Not surprisingly, this occurred very rarely, which
resulted in exceedingly little development of
case law. Indeed, prior to this year, there were a
total of only 740 federal cases nationwide even
mentioning "compassionate release" according
to a search of Lexis-Nexis.3 Accordingly, in 2016,
the U.S. Sentencing Commission held hearings
on compassionate release and concluded it was
not being sought frequently enough, and that
the Commission ought to encourage wardens to
more frequently move for compassionate release.
The Commission has conducted an in-depth
review of this topic, including consideration
of Bureau of Prisons data documenting
lengthy review of compassionate release
applications and low approval rates, as well
as two reports issued by the Department
of Justice Office of the Inspector General
that are critical of the Bureau of Prisons'
implementation of its compassionate
release program. See U.S. Department of
Justice, Office of the Inspector General, The
Vol. 5, Issue 3 l For The Defense

51



For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3

Contents
For the Defense - Vol. 5, Issue 3 - 1
For the Defense - Vol. 5, Issue 3 - 2
For the Defense - Vol. 5, Issue 3 - Contents
For the Defense - Vol. 5, Issue 3 - 4
For the Defense - Vol. 5, Issue 3 - 5
For the Defense - Vol. 5, Issue 3 - 6
For the Defense - Vol. 5, Issue 3 - 7
For the Defense - Vol. 5, Issue 3 - 8
For the Defense - Vol. 5, Issue 3 - 9
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