Most compassionate release requests are denied by the Bureau of Prisons (BOP). A warden’s denial can be appealed inside the BOP. And since the First Step Act of 2018, a person can take the request to court after a denial, or once 30 days have passed since the warden received it.
Federal law lets the BOP ask federal courts to grant compassionate release to certain people in prison. To get relief, a person must show “extraordinary and compelling” reasons that justify early release. The United States Sentencing Commission and the BOP have both written policies that define what those reasons are. This page explains how denials work.
How the BOP denies compassionate release
The BOP takes the word “extraordinary” to the extreme. The law that allows early release 
pictures the BOP playing a paperwork role: sending qualifying requests on to the courts for review. In practice, though, the BOP is very heavy-handed in how it handles these requests.
Most requests are denied by the BOP itself. According to data obtained by The New York Times, the BOP received about 5,400 compassionate release requests between 2013 and 2017. About 350 were approved, or 6 percent. During those four years, 266 people in federal prison died while waiting for a decision.
Appealing a warden’s denial
Federal regulations and BOP policy set out the steps for compassionate release, including what a person can do after a denial. Under 28 C.F.R. § 571.63, when a warden denies a request, “the [prisoner] will receive written notice and a statement of reasons for the denial.” The person can then appeal through the BOP’s Administrative Remedy Program, its internal appeal process.
The Administrative Remedy Program is governed by 28 C.F.R. part 542, subpart B and BOP Program Statement 1330.18. Both require the person to appeal to the warden first, using form BP-9 (the blue form). Since the warden made the original decision, appealing to the same warden may seem pointless. But the program is very strict about procedure, and there doesn’t seem to be an exception to the “warden first” rule. So a person denied compassionate release should start by appealing to the warden.
The warden will almost always deny the BP-9. Within 20 days of that denial, the person can appeal to the Regional Director using form BP-10 (the yellow form). If the Regional Director says no, the person can appeal to the General Counsel, also called the Central Office, using form BP-11 (the pink form).
Going to court after a denial
Before the First Step Act of 2018, a final BOP decision on compassionate release was generally the end of the road. When Congress gave the BOP power to seek a person’s release, it gave the BOP full control over that decision. Courts routinely held that 18 U.S.C. § 3582(c)(1)(A) gave judges no power to grant compassionate release unless the BOP filed a motion. Today, the person in prison can file the motion in court after a denial, or once 30 days have passed since the warden received the request.
Some people have challenged denials using 28 U.S.C. § 2241. This is a type of habeas corpus case, where the person argues that the way the BOP is carrying out the sentence is unconstitutional. Most courts that have ruled on these petitions found that § 2241 does not let a judge review a BOP decision not to file a compassionate release motion.
When a court denies compassionate release
In the rare cases where the BOP agrees that compassionate release is right, the final decision belongs to the federal district court that sentenced the person. After the motion is filed, the judge reviews the evidence and any arguments from both sides, then decides. Historically, when a person was still alive after making it through the BOP’s compassionate release process, the court granted the motion in almost every case and reduced the sentence in some way. The court can reduce the prison term and may add probation or supervised release, for no longer than the unserved part of the original prison term (18 U.S.C. § 3582(c)(1)(A)).
Courts do sometimes deny a properly filed motion. When that happens, the person can appeal to the Circuit Court of Appeals. There are very few reported decisions where a court denied a BOP motion, and even fewer appeals. That is because the BOP has historically leaned toward denying relief. Also, most cases the BOP approves involve serious, often terminal medical conditions, and the person dies before much court action can happen.
More about compassionate release denials
For more on dealing with a denial, see our frequently asked questions, our profiles of compassionate release denials and our page on what to do if compassionate release has been denied.
Getting legal help
If you or a loved one has been denied compassionate release, Criminal Center can review the original request and the reasons behind it, then lay out a plan to fix any weak spots. That could mean researching and writing a new petition, appealing a denial, or contacting certain BOP officials to try to get the BOP to change its position.
If you want help with a compassionate release request, book a consultation.