Statutes, Regulations, Guidelines and Policy

Statutes, Regulations, Guidelines, and Policy

Once sentenced to prison, federal prisoners will serve 85 percent of their sentence, with few exceptions. One of the exceptions is known as compassionate release. Pursuant to a patchwork of statutory law, regulations, guidelines, and policy, prisoners who present “extraordinary and compelling” circumstances may be released from prison prior to the expiration of their sentence. This page presents the statutes, regulations, guidelines, and policies of federal compassionate release.

Federal Statutory Law

Compassionate release was authorized by Congress as part of the Sentencing Reform Act of 1984. Codified at 18 U.S.C. § 3582(c)(1)(A), the Act allows federal prisoners to apply for early release if they present certain “extraordinary and compelling” reasons. Specifically, the statute permits a Statutes, Regulations, Guidelines and Policy of Compassionate Releasecourt to reduce the term of imprisonment, upon motion by the Director of the Bureau of Prisons, after considering the factors set forth in 18 U.S.C. § 3553(a), and when extraordinary and compelling reasons warrant such a reduction.

Parsing the language, this means that Congress gave the BOP permission to ask a court for a reduction in sentence for certain prisoners. The statute does not authorize a prisoner to petition a court for compassionate release. When the Bureau makes such a motion, the court must consider the § 3553(a) factors, which are considered prior to any federal sentencing. The court must also find that a reduction in sentence is consistent with “applicable policy statements issued by the Sentencing Commission.”

United States Sentencing Commission Guidelines

Pursuant to Congressional directive, the United States Sentencing Commission (USSC), a division of the judiciary, developed a policy statement defining the extraordinary and compelling reasons that justify compassionate release. The policy statement can be found in the United States Sentencing Guidelines (USSG) § 1B1.13. The Guideline was last amended in November 2016.

The USSC policy statement establishes four categories of criteria that should be considered extraordinary and compelling reasons for compassionate release. The categories are “Medical Condition of the Defendant,” “Age of the Defendant,” “Family Circumstances,” and “Other Reasons.”

The “Medical Condition of the Defendant” category is further subdivided. One prong allows for the compassionate release of prisoners with terminal illnesses. The other allows for the early release of prisoners with a debilitating condition.

The “Age of the Defendant” category, considered elderly inmates by the Bureau of Prisons, contemplates the compassionate release of prisoners who have reached the age of 65 and are experiencing a serious deterioration of health due to the aging process. The USSC policy statement also requires that such prisoners have served at least 10 years or 75 percent of their imprisonment, whichever is less. Note that the Bureau’s policy, discussed below, does not match the USSC policy.

The USSC also established a “Family Circumstances” category. Under this category, if the sole family member caregiver of a prisoner’s minor child dies or becomes incapacitated, he or she may apply for compassionate release. The “Family Circumstances” category also allows for the early release of a prisoner whose spouse or registered partner has become incapacitated if the prisoner is the only available family member caregiver.

Finally, the USSC policy statement includes an “Other Reasons” category. This provision allows for a reduction in sentence when the BOP determines that there exists an extraordinary or compelling reason, other than, or in combination with, the other compassionate release categories.

Federal Regulatory Law

Code of Federal Regulations Title 28, Chapter V, Subchapter D, Part 571, Subpart G lists regulations promulgated in response to Congress’ establishment of compassionate release. The regulations describe the procedures that the Bureau uses when evaluating compassionate release requests.

According to 28 C.F.R. § 571.61, the request must be initially submitted to the Warden. Pursuant to 28 C.F.R. § 571.62, if the Warden approves the application, he or she forwards it to the General Counsel. General Counsel then obtains the opinion of the Medical Director or the Assistant Director of the Correctional Programs Division and renders a decision. If General Counsel approves the application, it is sent to the Director of the BOP. If the Director approves the compassionate release, he or she will request that the U.S. Attorney for the prisoner’s sentencing district file a motion seeking a reduction in sentence. This is the typical compassionate release process.

If the Warden denies the prisoner’s application, 28 C.F.R. § 571.63 permits the prisoner to use the Administrative Remedy Program to appeal. If the General Counsel or Director denies the request, the denial is considered a final agency decision, which is not reviewable.

Bureau of Prisons Compassionate Release Policy

In order to fulfill its duty under 18 U.S.C. § 3582(c)(1)(A), the Bureau promulgated Program Statement 5050.49, Compassionate Release/Reduction in Sentence. This policy statement incorporates the federal regulations mentioned above, and also lays out the Bureau’s understanding of the “extraordinary and compelling” reasons that may justify compassionate release. It should be noted that this policy does not necessarily mirror the USSC policy, and was last updated on March 25, 2015. However, because the Director of the Bureau of Prisons is the only one who can move the sentencing court for early release pursuant to 18 U.S.C. § 3582(c)(1)(A), Bureau policy is uniquely important to the compassionate release process.

In a nutshell, Program Statement 5050.49 provides a very detailed description of what the Bureau will consider when reviewing a compassionate release request. The policy statement breaks the circumstances into three of the categories of compassionate release contemplated by the USSC: medical, elderly, and family circumstances. What the Bureau will consider when reviewing these applications varies, depending on the category.

See our Law and Policy of Compassionate Release FAQs page for more information. You can also call us at 802-444-4357 to discuss the statutes, regulations, guidelines, and policy of federal compassionate release.

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