Court ignores BOP 18-month rule for man with terminal cancer

Originally published July 24, 2020. Statements about the law were updated in October 2026; the box below gives today’s rules.

What the law says now (October 2026). A federal judge can reduce a sentence for “extraordinary and compelling” reasons (reasons that are especially unusual and convincing). You must first ask the warden in writing. You can file in court 30 days after the warden gets the request, or sooner if you finish the Bureau of Prisons’ appeals (18 U.S.C. § 3582(c)(1)(A)). The judge also weighs the sentencing factors in 18 U.S.C. § 3553(a). See who may seek compassionate release.

The Sentencing Commission’s policy statement. Since November 1, 2023, U.S.S.G. § 1B1.13 applies to motions filed by prisoners as well as by the Bureau of Prisons, and a reduction must be consistent with it (18 U.S.C. § 3582(c)(1)(A)). Posts from 2020–2023 that say courts were “not bound” by it describe the law before that date. Rutherford (2026) held the policy statement invalid to the extent it lets a non-retroactive change in law count as a reason.
Bureau of Prisons rules. The Bureau’s current policy is Program Statement 5050.51 (September 3, 2026). It has no 18-month life-expectancy rule, it dropped the child-caregiver, spouse-caregiver, and “other elderly” categories, and it lets people in halfway houses or on home confinement apply.
Age. A court may consider a person who is 65 or older, has a serious decline in health because of aging, and has served at least 10 years or 75 percent of the sentence, whichever is less (U.S.S.G. § 1B1.13(b)(2)). A separate rule covers people 70 or older who have served 30 years under 18 U.S.C. § 3559(c) (§ 3582(c)(1)(A)(ii)).

A federal court in New York granted compassionate release to a man with terminal thyroid cancer, even though the Bureau of Prisons (BOP) said he didn’t qualify. The BOP argued that he could live longer than 18 months if he had surgery. The judge said that informal rule carried no weight and ordered him released.

How compassionate release works for very sick prisoners

bop compassionate release-early release-compassionate release-bop's compassionate release

Compassionate release is a way to shorten a federal prison sentence for serious reasons, like a terminal illness. The First Step Act of 2018 sets out the rules. Either the prisoner or the Director of the Bureau of Prisons may file a motion asking the court to reduce the sentence. The court must also weigh the sentencing factors in 18 U.S.C. § 3553(a).

The law also says that “extraordinary and compelling reasons [must] warrant such a reduction.” The BOP’s compassionate release guidelines set strict rules for when a prisoner with a terminal illness should be considered. At the time, one BOP rule was a life expectancy of 18 months or less. Today neither the BOP (Program Statement 5050.51, September 3, 2026) nor the Sentencing Commission (U.S.S.G. § 1B1.13(b)(1)(A)) requires a specific life expectancy.

In this case, a federal district court looked at the BOP’s 18-month rule. The BOP argued that because the prisoner turned down surgery that might have helped him live longer, he no longer qualified. The court refused to apply the 18-month rule. It found that he had a terminal medical condition that qualified for compassionate release.

Mr. Wong’s terminal illness in U.S. v. Wong Chi Fai

In U.S. v. Wong Chi Fai, the United States District Court for the Eastern District of New York granted Mr. Wong’s petition for compassionate release under the First Step Act of 2018. Mr. Wong had received a life sentence for extortion and racketeering crimes tied to gang activity, including several murders.

When he filed, Mr. Wong was 65 years old and had served 26 years. He had a clean record of good behavior in prison.

BOP doctors diagnosed him with metastatic papillary thyroid cancer. Several surgeries and radiation did not work. When doctors found another tumor in his throat, he had trouble eating and swallowing. He was told he had about 12 months to live, which made him eligible to ask for compassionate release based on a terminal medical condition.

Mr. Wong turned down a tracheostomy (a breathing tube placed through the neck). BOP doctors thought the surgery could stretch his life expectancy to 18 months or maybe longer. But they also said that, even with surgery, he would live with chronic pain and need close supervision.

The BOP’s argument about the 18-month rule

At the time, the BOP’s compassionate release policy required a life expectancy of fewer than 18 months. The BOP argued that by refusing treatment that might extend his life past 18 months, Mr. Wong could no longer claim he had an end-of-life condition.

The court rejected this argument. It pointed to how severe his condition was. It also said his illness was still terminal, even if he might live longer than 18 months.

The court set aside the BOP’s 18-month rule for terminally ill prisoners, finding that “this informal policy holds no weight for the court.” It also found that Mr. Wong was not a danger to society. Finally, because he was severely disabled and getting worse, releasing him early did not conflict with the 18 U.S.C. § 3553(a) sentencing factors.

What this case means for people with a terminal illness

Most important, this case shows a prisoner qualifying for compassionate release. It also shows that the court is not bound by the BOP’s own internal compassionate release policy.

A prisoner may still have a terminal illness even if extreme treatments or surgery could add time to his life. This case shows that a prisoner does not have to prove he tried every treatment option. He also does not have to wait until he has 18 months or less to live before asking for release.

The court also noted that Mr. Wong’s age was a separate reason he could qualify, whether or not his illness counted as terminal. This is a helpful reminder for older prisoners and their families: a person may ask for compassionate release on more than one ground.

Under current rules, a prisoner may qualify with age 65 or older, a serious decline in physical or mental health because of aging, and at least 10 years or 75 percent of the sentence served, whichever is less (U.S.S.G. § 1B1.13(b)(2); Program Statement 5050.51 § 4(c)). This is true even if the court finds that the person did not have a terminal medical condition. The prisoner must still meet all of the other requirements for compassionate release.

There is also a separate path for older prisoners. If a person is at least 70 years old, has served at least 30 years, and committed the crime on or after November 1, 1987, they may be eligible for compassionate release (18 U.S.C. § 3582(c)(1)(A)(ii); Program Statement 5050.51 § 5). As a “New Law” Elderly Inmate, they do not need to have a serious medical condition.

Asking for release because of a terminal illness

If you or someone you love is in prison with a terminal illness, compassionate release may be an option. Courts look closely at these requests. But U.S. v. Wong Chi Fai is a helpful example.

Even when the BOP refuses to file a motion for a prisoner, the court does not simply accept the BOP’s view. Don’t hold back from filing just because doctors expect you or your loved one to live longer than 18 months.

If you want help with a compassionate release request, book a consultation.