Putting the “Compassion” in Compassionate Release

Abstract

In a harsh and inflexible system that offers few opportunities for judges to reevaluate the sentences they impose when circumstances warrant, federal compassionate release holds great promise. When the First Step Act was passed in 2018, sentencing judges were freed from the restrictive Sentencing Commission policy statement that limited the circumstances under which judges could grant relief. Exercising that newfound discretion, judges began granting sentencing reductions for reasons not enumerated in the outdated policy statement, such as COVID-19 and excessive and unjust sentences. Judges in certain federal circuits, however, have been increasingly constrained by appellate case law that cabins judicial discretion. This article makes the case for the Sentencing Commission to expand and codify in its forthcoming policy statement judicial discretion to identify unenumerated “extraordinary and compelling” circumstances warranting a sentencing reduction and to reject circuit courts’ narrowing of compassionate release. We illuminate how judges have mindfully used their discretion over the past four years to grant relief for a variety of extraordinary and compelling reasons. In particular, this article describes our Clinic’s successful litigation for victims of law enforcement’s stash house reverse sting operations as illustrative of the need for expanded judicial discretion in compassionate release. Enshrining that discretion in an updated policy statement would provide an administrable safety valve consistent with Congress’s intent that compassionate release be a mechanism to remedy truly unjust sentences. Only then will compassionate release be truly compassionate.