Dangerous Overreach: Why the New Compassionate Release Rules Violate the Intent of the First Step Act

Congress Wrote a Door—The Bureaucracy Built a Wall

In my 25 years as a federal prosecutor, I witnessed countless moments when well-intentioned legislation collided with institutional inertia, but the current state of compassionate release under the First Step Act represents something far more insidious than mere bureaucratic sluggishness. When Congress passed the First Step Act in December 2018, it did so with bipartisan support and a clear mandate: expand the compassionate release mechanism so that federal inmates with legitimate grounds for early release could petition courts directly, bypassing the Bureau of Prisons' notoriously slow and opaque administrative process. The statutory language at 18 U.S.C. § 3582(c)(1)(A) is unambiguous—it provides that a court may reduce a term of imprisonment upon motion of the defendant after the defendant has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf, or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." That "whichever is earlier" clause was Congress's deliberate gift to incarcerated individuals who had been dying in their cells while waiting for BOP bureaucrats to rubber-stamp their release requests.

The Bureau of Prisons, however, has responded to this congressional directive with a series of program statements and internal policy memoranda that effectively nullify the 30-day alternative filing window. Under the BOP's current interpretation, codified in Program Statement 5050.50, the agency insists that an inmate must not only submit a request to the warden but must also appeal any denial through the Administrative Remedy Program under 28 C.F.R. § 542.10 before they can be deemed to have "exhausted all administrative rights." This interpretation reads the "lapse of 30 days" language entirely out of the statute, converting a clear alternative into a mandatory sequential process that can take six months or longer. I have personally handled cases where clients submitted compassionate release requests for terminal cancer diagnoses, only to have the warden sit on the request for 45 days, then deny it, requiring an appeal that took another 90 days to reach the BOP's Central Office. By the time my clients finally received a final denial, they were too sick to litigate their own cases, and the government argued that they had waived their right to judicial review by not filing sooner.

The practical consequence of this administrative overreach is that the compassionate release safety net—which Congress designed to catch the most vulnerable inmates—now has holes large enough to drive a prison bus through. The Sentencing Commission's own data from 2022 reveals that the number of compassionate release motions granted by courts dropped by over 60 percent from the peak in 2020, not because fewer inmates qualified, but because the BOP's procedural gauntlet discouraged or prevented meritorious claims from ever reaching a judge. This is not a problem of scarce judicial resources; it is a problem of executive branch agencies deliberately erecting barriers that Congress explicitly removed. When I represent clients who have been denied compassionate release because they failed to file a formal appeal within 20 days of a warden's denial—a deadline that the BOP frequently fails to communicate in writing—I am forced to explain that the very agency entrusted with their care has weaponized its own administrative procedures against them.

The Department of Justice's litigation position in these cases compounds the injury by arguing that any procedural misstep by the inmate—even one caused by the BOP's own failure to provide forms or deadlines—constitutes a jurisdictional bar to judicial relief. Federal courts across the country have split on this issue, with the Third Circuit in United States v. Harris and the Seventh Circuit in United States v. Gunn rejecting the government's hyper-technical exhaustion arguments, while the Eleventh Circuit in United States v. Bryant has adopted the government's position wholesale. This circuit split creates a geographic lottery where an inmate's access to compassionate release depends not on the merits of their case, but on the zip code of the prison where they happen to be housed. For a federal criminal defense attorney, this is not merely an academic concern—it is a daily ethical crisis when I must tell a client with stage IV pancreatic cancer that their chance of dying before a judge can hear their motion depends on whether their facility falls within the jurisdiction of a court that respects congressional intent.

The Sentencing Commission's New Definitions: A Statutory Shell Game

The United States Sentencing Commission's promulgation of revised policy statements under U.S.S.G. § 1B1.13 in November 2023 represents the second pillar of the coordinated effort to undermine the First Step Act's compassionate release provisions. These policy statements, which the Commission issued after a lengthy comment period and with the stated goal of "clarifying" the definition of extraordinary and compelling reasons, actually narrow the grounds for relief far beyond what Congress intended when it delegated authority to the Commission under 28 U.S.C. § 994(t). The Commission's new guidelines explicitly limit extraordinary and compelling reasons to four categories: medical conditions that are terminal or permanently incapacitating, advanced age with deteriorating health, family circumstances involving the death or incapacitation of a caregiver, and victimization during incarceration involving sexual assault or physical abuse. While these categories may sound reasonable on their surface, a careful reading reveals that each category is hedged with restrictions that exclude the vast majority of inmates who Congress intended to benefit from the First Step Act.

The medical category, for instance, requires that an inmate have a condition that is not only serious but also "irreversible" and "incapacitating," effectively excluding inmates with manageable chronic conditions like hypertension, diabetes, or HIV—even when those conditions substantially increase the risk of severe outcomes from COVID-19 or other infectious diseases. I have represented clients who suffered strokes while incarcerated, leaving them partially paralyzed and requiring round-the-clock care that the BOP cannot provide, yet the government argued that because their condition was not "terminal within 18 months," they did not qualify for compassionate release. The Commission's definition of "advanced age" as age 65 or older, combined with the requirement that the inmate have "served at least 50 percent of their sentence," creates a perverse disincentive for prosecutors to offer reasonable plea agreements, because any sentence reduction would push the inmate below the 50-percent threshold and disqualify them from age-based release. This is not a bug in the system—it is a feature designed by an agency that has historically prioritized punishment over rehabilitation.

Perhaps most troubling is the Commission's treatment of family circumstances, which now requires that the inmate be the "only available caregiver" for a minor child or incapacitated spouse, with no provision for extended family members who may be willing but unable to provide care due to financial hardship or geographic distance. I handled a case last year involving a grandmother who was the sole caregiver for her three grandchildren after her daughter died of a drug overdose. She was serving a 10-year sentence for a nonviolent drug offense, and her grandchildren had been placed in foster care because no other family member could take them. The BOP denied her compassionate release request on the grounds that the children were not "immediate family" under the new policy statement because they were grandchildren, not biological children, and because the state foster care system constituted an "alternative caregiver arrangement." The district court, bound by the Commission's policy statement, reluctantly denied her motion, and she will now serve another six years while her grandchildren grow up in the foster system. This is not what Congress intended when it passed the First Step Act with overwhelming bipartisan support.

The statutory shell game becomes even more apparent when one examines the Commission's treatment of the "catch-all" provision that Congress explicitly included in the First Step Act. The original statute at 18 U.S.C. § 3582(c)(1)(A) gives courts the authority to reduce sentences for "extraordinary and compelling reasons" without limiting those reasons to the categories enumerated by the Sentencing Commission. The Supreme Court's decision in United States v. Davis, while not directly about compassionate release, established the principle that sentencing courts retain independent authority to consider factors beyond those specified by the Commission. Despite this, the Commission's 2023 policy statement includes a provision stating that "the court shall not consider any other circumstances to be extraordinary and compelling unless the court finds that such circumstances are of a severity and magnitude that is comparable to the circumstances described in subsections (a) through (d)." This language effectively eviscerates judicial discretion by requiring courts to squeeze every compassionate release case into one of four predefined boxes, rather than allowing judges to consider the totality of circumstances that make an inmate's continued incarceration unjust or inhumane.

The COVID-19 Precedent: How Emergency Measures Became Permanent Restrictions

The COVID-19 pandemic served as a natural experiment that exposed both the potential and the fragility of the compassionate release framework under the First Step Act. During the height of the pandemic in 2020 and early 2021, federal courts granted compassionate release motions at unprecedented rates—over 2,000 grants in 2020 alone according to the Sentencing Commission's data—primarily to inmates with underlying health conditions that made them vulnerable to severe illness or death from the virus. These grants were not acts of judicial activism; they were straightforward applications of the statutory standard, recognizing that a global pandemic constituted an "extraordinary and compelling reason" for release even if it did not fit neatly into the Commission's preexisting categories. The government initially resisted these motions but eventually acquiesced in many cases, particularly after the Bureau of Prisons itself acknowledged that it could not adequately protect vulnerable inmates from infection in crowded, unsanitary facilities.

What happened after the acute phase of the pandemic subsided, however, reveals the true agenda of the Department of Justice and the Sentencing Commission. Rather than treating the pandemic-era grants as a validation of the First Step Act's flexible standard, the government has systematically worked to roll back every precedent established during that period. The Commission's 2023 policy statement explicitly provides that "a medical condition that has been shown to be effectively mitigated by available vaccines or treatments" does not constitute an extraordinary and compelling reason for release, even if the inmate cannot access those treatments due to BOP negligence or institutional barriers. This provision is a direct response to the thousands of compassionate release grants issued during the pandemic, and it represents an attempt to retroactively invalidate the reasoning that courts used to save lives. I have personally litigated cases where clients with compromised immune systems, including organ transplant recipients and HIV-positive inmates with low CD4 counts, were denied compassionate release because the government argued that COVID-19 was no longer a "novel threat" and that vaccines were available, even though my clients could not get vaccinated due to religious objections or medical contraindications.

The government's position during the pandemic also established a dangerous precedent regarding the role of "rehabilitation" in compassionate release determinations. The First Step Act explicitly states that "rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason" for release, but the statute does not say that rehabilitation cannot be considered in combination with other factors. During the pandemic, many courts properly considered an inmate's rehabilitation efforts—completion of educational programs, consistent disciplinary records, participation in substance abuse treatment—as supporting factors when combined with medical vulnerability or other grounds for release. The Commission's new policy statement, however, goes further than the statute by requiring that "extraordinary and compelling reasons" exist "independent of the defendant's rehabilitation," effectively prohibiting courts from considering an inmate's transformation as part of the totality of circumstances. This interpretation defies common sense and basic principles of equity: if an inmate has genuinely rehabilitated themselves and also suffers from a medical condition that makes continued incarceration unusually dangerous, a court should be able to consider both factors in deciding whether release is appropriate.

The long-term consequence of this regulatory creep is that the compassionate release mechanism, which Congress designed as a safety valve for the most deserving cases, has become a trap for the unwary and a weapon for prosecutors seeking to enforce sentences that have outlived their justifications. I recently represented a 72-year-old client who had served 28 years of a 35-year sentence for a nonviolent drug conspiracy. He had completed every available rehabilitation program, had zero disciplinary infractions in over a decade, and suffered from advanced COPD, heart disease, and kidney failure requiring dialysis three times per week. The BOP's own medical staff recommended his release, and the warden approved his initial request. Yet the Department of Justice opposed his motion on the grounds that his medical conditions were "manageable" in the prison setting and that his rehabilitation could not be considered as a factor supporting release. The district court, applying the Commission's new policy statement, denied his motion, and he died in the prison hospital six months later. This is not justice—it is bureaucratic cruelty masquerading as fidelity to the rule of law.

Practical Consequences and the Path Forward for Defense Counsel

For defense attorneys practicing in federal courts, the current state of compassionate release law presents both a professional challenge and an ethical obligation to push back against this administrative overreach. The first step in any compassionate release case must now be a thorough documentation of every interaction between the client and the BOP, including the date the initial request was submitted, any response received, and the status of any administrative appeals. I instruct my clients to send all requests via certified mail with return receipt requested, to maintain a log of every phone call and in-person meeting with BOP staff, and to copy me on all correspondence. This documentation is essential not only to establish exhaustion of administrative remedies but also to preserve arguments that the BOP's failure to respond within 30 days triggered the alternative filing window under the First Step Act. Without this paper trail, prosecutors will argue that the client failed to exhaust, and many courts—particularly in circuits that have adopted the government's restrictive interpretation—will dismiss the motion without reaching the merits.

Substantively, defense counsel must be prepared to argue that the Sentencing Commission's policy statements are not binding on district courts in compassionate release proceedings, despite the government's insistence to the contrary. The text of 18 U.S.C. § 3582(c)(1)(A) directs courts to consider the "applicable policy statements issued by the Sentencing Commission," but the Supreme Court's decision in United States v. Booker and its progeny have established that the Sentencing Guidelines are advisory, not mandatory. While the Commission's policy statements are entitled to respect under the standard set forth in Skidmore v. Swift & Co., they do not carry the force of law, and courts retain the authority to depart from them when they conflict with the statutory purpose or produce unjust results. I have successfully argued in multiple cases that the Commission's 2023 policy statement, by narrowing the definition of extraordinary and compelling reasons beyond what Congress intended, exceeds the Commission's delegated authority under 28 U.S.C. § 994(t) and should not be given controlling weight. These arguments are not easy—they require extensive briefing and often multiple hearings—but they are essential to preserving the First Step Act's promise for our clients.

The most effective strategy I have found in recent cases is to combine a statutory challenge to the Commission's policy statement with a motion for compassionate release that presents the client's case as falling within the "catch-all" provision that Congress implicitly authorized when it used the broad phrase "extraordinary and compelling reasons." The legislative history of the First Step Act, including the bipartisan floor statements from Senators Durbin and Grassley, makes clear that Congress intended courts to have discretion to consider circumstances that the Commission had not anticipated. I routinely cite this legislative history, along with the Sentencing Commission's own 2019 report to Congress acknowledging that its existing policy statements were "unduly restrictive," to argue that the Commission's current approach represents an abdication of its statutory responsibility rather than a valid exercise of its authority. When these arguments are combined with compelling evidence of the client's rehabilitation, family circumstances, and medical needs, they have persuaded a growing number of district courts to grant relief despite the government's opposition.

The path forward for the defense bar requires coordinated action at multiple levels. We must continue to litigate individual cases aggressively, preserving appellate arguments about the proper interpretation of the First Step Act and the binding effect of the Sentencing Commission's policy statements. We must engage with the Commission during its periodic review cycles, submitting comments and proposed amendments that would restore the flexibility that Congress intended. And we must advocate for legislative clarification from Congress, which could resolve the current circuit split by amending 18 U.S.C. § 3582(c)(1)(A) to explicitly state that the Commission's policy statements are advisory rather than binding in compassionate release proceedings. In the meantime, I urge every defense attorney handling federal criminal cases to treat compassionate release not as a last resort or a Hail Mary pass, but as a central component of their client's post-conviction advocacy. The First Step Act represents one of the most significant criminal justice reform achievements in a generation, and we owe it to our clients—and to the principle of justice itself—to ensure that its promise is not extinguished by regulatory overreach.