Since the pandemic began, the federal courts have been inundated with Compassionate Release applications from attorneys seeking the immediate or early release of clients in custody. Compassionate Release is indeed a feasible option for some people who are incarcerated or about to surrender to a federal prison. Because Compassionate Release is a worthwhile opportunity, it is extremely important that you have a knowledgeable attorney to assist you during the process.

What is Compassionate Release?

A person requests Compassionate Release through 18 U.S.C. § 3582, which was amended by the First Step Act. The law allows a reduction of an inmate’s term of imprisonment if the court finds that:

1. extraordinary and compelling reasons warrant a reduction in the person’s prison sentence;
2. the reduction would be consistent with applicable policy statements of the Sentencing Commission; and
3. the applicable sentencing factors are met.

Extraordinary and Compelling Reasons Standard
Since COVID-19, “extraordinary and compelling reasons” can usually be demonstrated by having a medical ailment or co-morbidity that increases the risk of severe illness from the virus that causes COVID-19 (i.e., cancer, type II diabetes, obesity, heart conditions, sickle cell disease) and a showing that COVID-19 cases in the prison are rising or likely to rise. Other factors, such as advanced age or compelling family circumstances, can also sometimes satisfy the “extraordinary and compelling” standard.

Applicable Policy Statement
The Sentencing Commission’s policy statement addressing the reduction of a sentence under 18 U.S.C. § 3582 provides that a defendant’s physical and medical condition, age, and family circumstances may all serve as independent grounds for the existence of a compelling reason to reduce one’s sentence.

Applicable Sentencing Factors
The applicable sentencing factors, as set forth in 18 U.S.C. § 3553(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
• the need to avoid unwarranted sentence disparities

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

When Can You File for Compassionate Release?

Pre-Surrender
While less courts have granted pre-surrender Compassionate Release, meaning that the defendant has not yet surrendered to the prison, it is possible to win such an application. A defendant can request that the court, Warden and/or counsel for the Bureau of Prisons (BOP) modify the defendant’s sentence to time served and convert the unserved prison term to supervised release with the additional condition of home confinement even before the defendant has ever stepped foot inside a prison. While a person must satisfy all of the requirements outlined above for a pre-surrender Compassionate Release application, it is also important to show some kind of changed circumstance from the date of sentencing to the date of the Compassionate Release application.

Incarcerated
You can file a Compassionate Release application at any time while incarcerated and after exhausting one’s administrative remedies. The shorter the prison sentence, and the more time the defendant has served of that prison sentence, the higher the probability that the applicable sentencing factors will be weighed in the defendant’s favor.

Who Should You Address Your Compassionate Release Request to?

The short answer is – everyone.

BOP Senior Counsel
There is a BOP senior counsel who is assigned to the different prisons and regions. It is important that a Compassionate Release application be sent to that person. It is also important that your attorney contact the BOP counsel and discuss the defendant’s specific circumstances. The BOP counsel can be a helpful ally throughout the Compassionate Release process.

Warden
In some jurisdictions, contacting the Warden prior to filing a Compassionate Release application is required. The Compassionate Release statute previously permitted sentence reductions only upon motion of the Director of the BOP. Currently, however, the statute permits courts to consider motions filed by the defendant as long as the defendant has exhausted all administrative rights. In order to exhaust one’s administrative rights in the Compassionate Release context, one must make a Compassionate Release request to the Warden. Once the request is made to the Warden, and the Warden either denies the request or 30 days has passed, (whichever is earlier), the person may then file a Compassionate Release motion before the Court. The request to the Warden must contain specific language in order to begin the 30-day clock.

The Judge
The Compassionate Release Motion should be filed before the district court judge who sentenced the defendant.

The Government
While most Assistant United State Attorneys (AUSA) do not “consent” to a compassionate release application, an AUSA will occasionally “take no position” on the application – which is as good as it gets from the government. So, it is important that your attorney communicates with the AUSA assigned to your case and understands the government’s position on a potential Compassionate Release application.

Now What?

The process for applying for Compassionate Release can be complicated. It requires the ability to communicate with the Warden, BOP Counsel, Court and the assigned AUSA. Be sure to contact an attorney that has experience in this area of law. 

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