In April, the U.S. Sentencing Commission voted to expand the guidelines for compassionate release, effective Nov. 1.

These new guidelines increase the applicability of compassionate release to incarcerated people who are not receiving adequate health care while in Federal Bureau of Prisons custody.

While the amendments have expanded the circumstances under which defendants may seek compassionate release, defense counsel will need to keep several things in mind when filing for compassionate release pursuant to the new guidelines.

Compassionate Release

For more than three decades, requests for compassionate release, or a sentence reduction, were made pursuant to Title 18 of the U.S. Code, Section 3582(c)(1)(A), and were only granted upon the motion of the BOP.

In 2018, the First Step Act expanded compassionate release and permitted defendants to file motions for sentence reductions themselves under Title 18 of the U.S. Code, Section 3582.

The law allows a reduction of a defendant's term of imprisonment if:

• The court finds that extraordinary and compelling reasons warrant such a reduction;
• The reduction is consistent with applicable policy statements of the Sentencing Commission; and
• The applicable sentencing factors are met.

The applicable sentencing factors, as set forth in Section 3582(a), include, but are not limited to:

• The nature and circumstances of the underlying offense;
• The history and characteristics of the defendant;
• The need for the sentence imposed to reflect the seriousness of the underlying offense;
• The need for the sentence to provide adequate deterrence;
• The need to protect the public from further crimes of the defendant; and
• The need to avoid unwarranted sentence disparities.

In weighing these factors, courts look to whether the underlying offense was violent, if the defendant had a violent history or poses any threat to the community, and if the prison sentence was long enough or necessary to deter the defendant's conduct.

The Sentencing Commission's policy statement previously addressed the reduction of a sentence under Section 3582 and provided that a defendant's physical and medical condition, age, and family circumstances may serve independently as compelling reasons to reduce their sentence.

When the COVID-19 pandemic began, incarcerated people began filing compassionate release applications for extraordinary and compelling reasons due to serious medical ailments or comorbidities that increase the risk of severe illness from COVID-19, such as cancer, Type 2 diabetes, obesity, heart conditions or sickle cell disease, and a showing that COVID-19 cases in the prison were rising or likely to rise.

Other factors, such as advanced age or compelling family circumstances sometimes satisfied the standard of extraordinary reasons.

As vaccines became readily available, and the health emergency caused by the coronavirus dissipated, defense attorneys and prisoners began to fear that compassionate release would become a thing of the past.

However, this April, the U.S. Sentencing Commission approved new guidelines expanding the applicability of compassionate release.

Recent Expansion

These new guidelines provide broad latitude and discretion to courts in granting compassionate release requests and expand eligibility to encompass incarcerated people who require long-term or specialized medical treatment that is not being provided by the BOP.[1]

The Sentencing Commission proposed and formally adopted the amendments to the compassionate release statute to reflect extraordinary and compelling medical circumstances not expressly identified in the statute but "most often cited by courts in granting sentence reduction motions during the pandemic."[2]

While courts have been judicious in granting relief, the amendments seek to formally recognize what the courts have already been doing for incarcerated people not receiving necessary medical treatment.

The list of specified extraordinary and compelling reasons was expanded in part by adding two new subcategories to the "medical circumstances of the defendant" ground for relief.[3]

The first medical circumstances subcategory concerns defendants who are suffering from medical conditions that require long-term or specialized medical care that is not being provided by the BOP, and are at risk of serious deterioration in health or death.

The second category applies when a defendant has health risk factors that place them in increased danger of suffering severe medical complications or death due to exposure to an ongoing outbreak of infectious disease or a public health emergency. The public health emergency prong requires that the emergency be declared by the appropriate governmental authority.[4]

Filing Compassionate Release Pursuant to the New Guidelines

While the U.S. Federal Sentencing Guidelines are not binding, courts still give them significant weight when considering applications for compassionate release.

This most recent change in the sentencing guidelines is a clear indicator that the Sentencing Commission takes the health of incarcerated people very seriously. The expansion also evidences that the Sentencing Commission does not want courts to limit compassionate release to COVID-19-related health issues.

For this reason, it's important for an incarcerated person or their counsel to request BOP medical records that document the incarcerated person's medical conditions and the types of treatment the BOP is failing to provide.

It may also require the incarcerated person to have their own medical expert review the BOP medical records and provide the court with an opinion related to their need for long-term or specialized medical care. An expert may also be required to opine on the individual's risk of serious deterioration in health or death if the incarcerated person remains in BOP custody.

In making applications for compassionate release and citing to the newest sentencing guidelines, an incarcerated person or their attorney should rely on case law in which the court granted compassionate release due to the BOP's inability to provide adequate and timely medical care, even prior to the adoption of the amended guidelines. This illustrates the courts' recognition of the need to remedy these failures.[5]

Precedent is not just limited to circumstances where an individual has suffered significant harm from the BOP's failure to provide medical treatment, but also includes preemptive motions for compassionate release because the BOP's inadequate care places an incarcerated person at a heightened risk for severe health complications.[6] Therefore, defense counsel need not wait until the individual has already suffered.

Further to that point, defense counsel is not precluded from filing if the BOP has already provided some medical treatment. While the BOP may provide some testing, when other ordered exams or medications are withheld, motions for compassionate release may still be granted.

In sum, defense counsel should remember that the expanded applicability for compassionate release is intended as a vehicle to allow more incarcerated people facing compelling and extraordinary circumstances to seek compassionate release.

Therefore, armed with the correct case law and supporting medical documentation, motions can be successful based on the BOP's failure to provide adequate and timely medical care.

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