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Law and Policy of Compassionate Release

1. What policy, regulation, or statute governs federal compassionate release?

Compassionate release was created by Congress through the Sentencing Reform Act of 1984, and is codified at 18 U.S.C. § 3582(c)(1)(A). Since its creation, the U.S. Sentencing Commission developed policy to govern the qualifications for compassionate release. This policy is located in U.S. Sentencing Guidelines § 1B1.13.

2. Does the U.S. Sentencing Commission policy govern federal compassionate release?

Yes and no. U.S. Sentencing Commission policy effectively advises the Bureau (and the federal court system) about what qualifies as an "extraordinary and compelling" circumstance, but the Bureau of Prisons has its own policies in place for program implementation.

3. What Bureau policy governs the compassionate release program?

Program Statement 5050.49, Compassionate Release/Reduction in Sentence, governs program operation. 28 C.F.R. § 571 et seq also provides guidance to the Bureau.

4. Why are there so many moving parts?

When Congress created compassionate release, it directed the U.S. Sentencing Commission to develop policies to aid the Bureau of Prisons in program implementation. The Bureau then developed its own policies, which conflict in some cases with those from the U.S. Sentencing Commission. Neither agency has the power nor authority to force the other agency to revise their policies, because the Sentencing Commission is a division of the judiciary and the BOP is an executive-level agency.

5. Who then is the final authority as it concerns federal compassionate release policy?

The Bureau's policies should be relied upon since it is the agency that actually operates the compassionate release program.

6. What about the broader policies of the U.S. Sentencing Commission?

These can be thought of as persuasive authority, but not mandatory authority. The Bureau's policy and determinations are final.

7. What would it take to bring the U.S. Sentencing Commission's and Bureau of Prison's policies into alignment with one another?

One of the two agencies would need to modify their own policies to be commensurate with the other's policies, or Congress would have to amend the U.S. Code.

8. Are there any planned changes to any of these policies?

In recent years, the Bureau has been subject to intense public scrutiny and criticism concerning its operation of the federal compassionate release program. As a result, there are several pieces of legislation in both houses of Congress which would make modifications to the program. But until a bill is signed into law or the Bureau elects to change its own policies, existing compassionate release policy will remain as it currently stands.

If you have questions that have not been answered by our Law and Policy of Compassionate Release FAQs, please call us at 802-444-4357.

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