Pandemic Compassionate Release and the Case for Improving Judicial Discretion over Early Release Decisions

Abstract

After decades of Bureau of Prisons’ maladministration of the sentence reduction authority authorized by 18 U.S.C. § 3582, Congress passed the First STEP Act of 2018 with the intention of expanding the use and transparency of compassionate release. Although the COVID-19 pandemic was not among the considerations when the First Step Act became law, it contains several important modifications that may protect thousands of federal prisoners from severe sickness and premature death while in custody. First, its procedural modification allowing federal prisoners to circumvent the often-artificial strictures of the Bureau of Prisons allows for a timely and proactive release decision from the sentencing court before a vulnerable individual is stricken with the deadly virus. Second, district courts are now permitted to grant release decisions to deserving individuals who were previously blocked from petitioning their sentencing court by the Bureau of Prisons. Importantly, courts are empowered to find grounds for release beyond those specifically enumerated in the now-outdated Sentencing Commission policy statement that formerly restricted compassionate release decisions. After observing the potential of the new compassionate release process as modified by the First Step Act, Congress should avoid concurrent systems of release and judicial discretion over early release should be expanded by statute or via an updated Sentencing Commission policy statement.