Courts Can Define “Extraordinary and Compelling Reasons” in Compassionate Release

The Sixth and Seventh Circuits have made rulings indicating that the court can determine what extraordinary and compelling circumstances are.
extraordinary and compelling, compassionate release

Act One: Searching for Compassion

Prior to the FIRST STEP Act of 2018, there were extremely few compassionate release motions ever filed for federal inmates. Of course, many inmates had extraordinary and compelling reasons for release before 2019. However, the reason there were virtually zero compassionate release motions filed prior to 2018 was more basic.

BOP Won’t Acknowledge Extraordinary and Compelling Reasons

For three decades, only the Federal Bureau of Prisons (“BOP”) could file motions to reduce sentence for compassionate release. Congress explicitly set out this restriction at 18 U.S.C. Section 3582(c), the part of the federal code governing compassionate release. In short, the BOP’s implementation of the compassionate release law constituted an unmitigated disaster.

Notably, the Department of Justice’s Office of the Inspector General repeatedly documented the BOP’s failure to file compassionate release motions for sick or dying inmates. For example, in 2013 the DOJ Inspector General issued a scathing report detailing the BOP’s failure to implement compassionate release. Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program, at 11 (April 2013) (“The BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”).

Following years of hearings, Congress recognized that the BOP would never grant compassionate release to inmates on a meaningful basis. Despite its moral reprehensibility, this makes some intuitive sense; after all, the jailer holding the keys to the jail doesn’t see any real incentive to unlock the cell doors.

FIRST STEP Act Allows Inmates To File Motions

On December 21, 2018, the FIRST STEP Act destroyed the BOP’s ultimate authority over compassionate release. With the signing of the FIRST STEP Act, congress amended 18 U.S.C. Section 3582(c)(1) to permit an inmate to file his own request for relief under the compassionate release statute.

This allowed sentencing judges to consider a motion from the defense instead of just the BOP. Simply put, the FIRST STEP Act only requires that an inmate make a request to their warden and wait 30 days before filing a motion with the court. First Step Act of 2018, Section 603(b), Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018).

As of November 2020, the federal courts have compassionately released an estimated 1,700 persons so far. In 2019, there were 145 grants of compassionate release. The FIRST STEP Act changes to compassionate release appear to be working.

Act Two: How To Decide Compassionate Release Motions

Before 2018, very little caselaw informed how courts evaluated compassionate release motions. Because the BOP rarely filed such motions, extremely limited caselaw existed. Once inmates could bring their own motions for compassionate release, however, courts needed to decide how to evaluate the motions.

Congress did not give any new direction with the passage of the FIRST STEP Act. Instead, Congress told sentencing courts they could grant reductions in sentence in cases where “extraordinary and compelling reasons” existed. 18 U.S.C. Section 3582(c)(1).

However, Section 3582(c) contains other requirements for granting a sentence reduction that the FIRST STEP Act did not change. Today, there are three substantive requirements for a court to grant compassionate release to a defendant.

Firstly, the court must make findings that “extraordinary and compelling reasons” merit a sentence reduction for compassionate release. Secondly, the court must find that the sentence reduction is consistent with all “applicable” Sentencing Commission policy statements. Thirdly, the court must weigh the applicable sentencing factors under 18 U.S.C. Section 3553(a) and determine they support the compassionate release sentence reduction. See United States v. Ruffin, 978 F.3d 1000 (6th Cir. Oct. 26, 2020).

U.S. Sentencing Commission Policy Statements On Extraordinary and Compelling Reasons

A brief recap of the U.S. Sentencing Commission’s role in the compassionate release process helps us understand where things stand today. Decades ago, Congress directed the Sentencing Commission to develop policies to help determine what “extraordinary and compelling reasons” warrant compassionate release. See 28 U.S.C. Section 994(t).

The Sentencing Commission policy statements can be found at U.S.S.G. Section 1B1.13. The Sentencing Commission has not updated its guidance on compassionate release motions since before the passage of the FIRST STEP Act. They have not acted largely because they do not have enough voting members to enact any new guidelines today.

As a result, step one and step two of the compassionate release analysis required courts to look at the Sentencing Commissions’ policy statements. At step one, the policy statements help guide decisions about whether circumstances were “extraordinary and compelling reasons,” for a reduction. At step two, courts considered the definitions as “applicable” policy statements. The question that has divided courts rose out of these facts.

Simply put, are the courts limited to only granting compassionate release for circumstances that are consistent with the Sentencing Commissions’ policy on “extraordinary and compelling reasons” when that guidance has not been updated after the FIRST STEP Act?  

Act Three: Courts Unbound From Sentencing Commission

COVID-19 accelerated the need for courts to resolve compassionate release motions quickly and with the safety of inmates in mind. COVID-19 has ravaged U.S. prisons including the BOP. It seems intuitive that courts could grant compassionate release to vulnerable inmates based on the risk of dying from COVID-19, but the government has argued the law did not allow these motions.

Government Claims Policy Statement Exclusivity

Instead, the government opposed compassionate release motions across the country by making all kinds of arguments. One argument the government repeatedly made was that courts were required to support any sentence reduction by finding “extraordinary and compelling reasons” in only the circumstances outlined by the Sentencing Commission policy statement. The same policy statement that has not been updated since 2018.

This argument posed a real roadblock for inmates fearing death from COVID-19. That is because the policy statement generally said that “extraordinary and compelling reasons” applied only to inmates who were already sick, debilitated, or otherwise in compromised health and were unlikely to recover (it also detailed old age and some family situations as sufficient reasons).

The Sentencing Commission policy statement on sentence reduction did not account for the future risk of deadly disease. That is understandable; the United States has not seen a disease as communicable or deadly as COVID-19 in almost 100 years.

The Sentencing Commission policy statement did seem to have one safety-valve. The commentary to the policy statement contained a “catch-all” provision that allowed for “extraordinary and compelling reasons” in other situations as determined by the Director of the BOP. See U.S.S.G. 1B1.13 cmt. n.1(D) (“As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”) (emphasis added).

The problem was that the “catch-all” still left the BOP as the sole and absolute arbiter of what exactly was “extraordinary and compelling.” Put bluntly, the Sentencing Commission policy statement did not reflect the FIRST STEP Act’s procedural reforms to compassionate release that allowed motions brought by inmates.

Courts Hold Policy Statement No Longer Applicable

On the same day, both the Sixth and Seventh Circuits issued important decisions on compassionate release that resolve the issue of how to apply the old Sentencing Commission policy statement. Those courts joined the Second Circuit in finding that the old policy statement was no longer applicable to compassionate release petitions filed by inmates today.

United States vs Jones (Sixth Circuit, Kentucky, Michigan, Ohio and Tennessee)

In United States v. Jones, the Sixth Circuit issued an exhaustive opinion on the history of compassionate release, the legislative backdrop, and how to define “extraordinary and compelling reasons” for sentence reductions under Section 3582(c). United States v. Jones, No. 20-3701, 2020 WL 6817488 (6th Cir. Nov. 20, 2020). The central holding of Jones was that district courts are not required to look to U.S.S.G. 1B1.13 when evaluating compassionate release motions brought by inmates.

The Sixth Circuit said that the old policy statement was not “applicable” to compassionate release requests brought by the defense after the passage of the FIRST STEP Act.  Thus, district court judges in the Sixth Circuit have “full discretion” to define “extraordinary and compelling” without consulting the policy statement found at U.S.S.G. 1B1.13.

United States vs. Gunn (Seventh Circuit, Illinois, Indiana and Wisconsin)

Not to be outdone, the Seventh Circuit issued a similar decision on compassionate release in United States v. Gunn the very same afternoon. United States v. Gunn, No. 20-1959, 2020 WL 6813995 (7th Cir. Nov. 20, 2020). The long-tenured and thorough Judge Easterbrook authored the Gunn decision.

According to Judge Easterbrook, the Sentencing Commission has not yet issued an “applicable” policy statement to defendant requests for compassionate release. As Easterbrook said, “[a]ny decision is “consistent with” a nonexistent policy statement.”

In the Seventh Circuit today, district courts are free to operate under the statutory criteria of “extraordinary and compelling reasons” when deciding sentence reduction motions without regard for the policy statement. And any decision by the district courts to grant compassionate release for reasons they see fit will be subject only to “deferential appellate review” for an abuse of discretion.  Gunn, No. 20-1959, 2020 WL 6813995, at *2 (7th Cir. Nov. 20, 2020).

United States vs. McCoy, (Fourth Circuit Maryland, North Carolina, South Carolina, Virginia, West Virginia),

Similarly, in McCoy, a case that we have discussed previously, the Fourth Circuit stated that “[w]hat § 3582(c)(1)(A) requires is that sentence reductions be consistent with “applicable policy statements.” And here, that consistency requirement simply is not implicated, for the threshold reason that there currently exists no “applicable policy statement[ ].”  The court noted that they joined the Second Circuit’s holding in Zullo, the Sixth Circuit’s decision in Jones and the Second Circuit’s decision in Gunn

The court went on to say that “A sentence reduction brought about by motion of a defendant, rather than the BOP, is not a reduction “under this policy statement.”…By its plain terms, in short,  § 1B1.13 does not apply to defendant-filed motions under  § 3582(c)(1)(A).”…”There is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended  § 3582(c)(1)(A), and as a result, district courts are “empowered … to consider any extraordinary and compelling reason for release that a defendant might raise.”

United States vs. Elias (Sixth Circuit, Kentucky, Michigan, Ohio and Tennessee)

In United States vs. Elias, the Sixth Circuit reconsidered the applicability of United States Sentencing Guideline 1B1.13. Elias was decided after Jones. When asked, the government said that the holding in Jones was dicta (meaning that it was a remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case) and as such it was not binding on the court.

The court was unpersuaded by this argument. The court determined that the government provided no compelling reason for the court to disturb the consensus of the circuits. The court held that 1B1.13 was not an applicable policy statement for compassionate release motions that are brought by inmates and that District Courts did not need to consider it when ruling on motions. While the court ultimately denied relief for other reasons, Elias is another example of the courts determining that 1B1.13 was not applicable to motions that are bought by inmates.


Every court of appeals to decide the issue so far has held that the Sentencing Commission policy statement on compassionate release is no longer “applicable” to requests from inmates after the FIRST STEP Act. This means that district courts have much more discretion than ever before to decide what types of circumstances are extraordinary and compelling to merit a sentence reduction.

This could include stacked 924(c) convictions, no longer applicable mandatory minimums for drug crimes, Section 851 enhancements that do not count, or any other host of reasons for seeking a reduction.

If you or your loved one is in federal prison and is interested in seeking compassionate release, please contact the law office of Jeremy Gordon P.L.L.C. at 972-483-4865 to schedule an appointment or send us an email to [email protected].

About the Law Office of Jeremy Gordon:

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