Dangerous Overreach: Why the New Compassionate Release Rules Violate the Separation of Powers

The New Directive: An Executive Power Grab Disguised as Policy Guidance

In my 25 years as a federal prosecutor and now as a federal criminal defense attorney, I have witnessed numerous attempts by the executive branch to expand its authority over sentencing matters, but the new compassionate release directive from the Department of Justice represents an unprecedented overreach. On January 17, 2025, the Attorney General issued a memorandum directing all United States Attorneys to oppose any motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) unless the inmate first demonstrates that the Bureau of Prisons has “affirmatively approved” the request through its internal administrative process. This directive purports to impose a mandatory exhaustion requirement that goes far beyond what Congress intended when it passed the First Step Act of 2018, which explicitly authorized inmates to file motions directly with the court after exhausting administrative remedies OR after 30 days of inaction. The memorandum effectively rewrites the statute by adding a requirement that the BOP must have actually granted the request—not merely failed to act—before a court can consider the motion. This is not a mere policy preference; it is an executive branch attempt to nullify a clear congressional command. The directive instructs prosecutors to argue that district courts lack jurisdiction over any motion where the BOP has denied relief, even though the statute says nothing about such a jurisdictional bar. This is the kind of administrative power grab that the Framers specifically designed the separation of powers to prevent.

Why This Directive Violates the Separation of Powers Doctrine

The separation of powers is the bedrock of our constitutional system, dividing authority among three coequal branches and forbidding any one branch from encroaching on the core functions of another. Congress has the exclusive power to define federal crimes and prescribe punishments, which it did when it enacted 18 U.S.C. § 3582(c)(1)(A) as part of the First Step Act, creating a judicial mechanism for compassionate release that bypasses the BOP’s decades-long pattern of delay and denial. The judicial branch has the inherent authority to adjudicate motions and impose sentences within the statutory framework, and federal courts have consistently held that district judges retain broad discretion to grant or deny compassionate release based on the sentencing factors in 18 U.S.C. § 3553(a). By issuing this directive, the Attorney General is attempting to dictate to federal judges how they must rule on pending motions, effectively reducing Article III courts to administrative appendages of the Department of Justice. The Supreme Court has repeatedly warned against such encroachments, most notably in *United States v. Booker* (2005), which reaffirmed that the judicial power includes the authority to exercise discretion in sentencing. The new directive violates this principle by commanding prosecutors to argue that a court must deny any motion that does not meet the executive’s preferred procedural hurdles, regardless of the merits of the inmate’s medical condition or rehabilitation. This is precisely the type of executive interference with judicial independence that the separation of powers was designed to prevent, and it must be struck down.

The Practical Impact: Cruel and Unnecessary Barriers to Justice

Beyond the constitutional infirmities, the practical consequences of this directive are devastating for the very people Congress intended to help: elderly, terminally ill, and medically vulnerable inmates who pose no threat to public safety. Under the First Step Act, Congress deliberately created a safety valve that allowed inmates to seek relief directly from a federal judge after 30 days of BOP inaction, recognizing that the agency had a documented history of ignoring or unreasonably delaying compassionate release requests. The new directive effectively closes that safety valve by requiring that the BOP must have actually granted the request—a requirement that ignores the reality that the BOP denies over 90% of all compassionate release requests, often without meaningful review of medical evidence. I have personally represented clients who submitted complete medical records documenting terminal cancer diagnoses, only to receive form-letter denials from the BOP within days, without any indication that a medical professional had reviewed the file. Under the new directive, those clients would be told that they cannot even ask a federal judge for mercy because the BOP said no first. This is not merely a procedural inconvenience; it is a substantive denial of access to the courts that violates the Due Process Clause of the Fifth Amendment. The directive forces inmates to languish in prison while their medical conditions deteriorate, all because the executive branch has decided that it—not the courts—should have the final word on who deserves compassionate release. This is administrative cruelty dressed up in the language of policy guidance, and it will not withstand judicial scrutiny.

Strategic Responses for Defense Counsel: How to Challenge These Unlawful Rules

As defense attorneys, we have both an ethical obligation and a strategic imperative to challenge this directive at every opportunity, and we must do so immediately before it becomes entrenched as standard practice. The first and most powerful argument is that the directive violates the plain text of 18 U.S.C. § 3582(c)(1)(A), which states that a court “may reduce the term of imprisonment” upon motion of the defendant after the 30-day exhaustion period, without any requirement that the BOP have approved the request. We must cite the Supreme Court’s recent decision in *Loper Bright Enterprises v. Raimondo* (2024), which overruled *Chevron* deference and held that courts must exercise their independent judgment in interpreting statutes, giving no deference to agency interpretations—especially when those interpretations concern criminal statutes that implicate individual liberty. We should file motions arguing that the directive is void ab initio as an ultra vires agency action that exceeds the Attorney General’s statutory authority under 28 U.S.C. § 509, which only grants the power to “conduct and supervise” litigation, not to dictate substantive legal standards to the courts. Additionally, we must preserve the constitutional separation-of-powers challenge by arguing that the directive impermissibly interferes with the judicial function of sentencing and undermines the congressional purpose of the First Step Act. Every compassionate release motion should include a section explicitly challenging the directive, supported by declarations from medical experts and evidence of the BOP’s systemic failures. We must also be prepared to litigate these issues up to the circuit courts, where we have strong precedent in cases like *United States v. Aruda* (9th Cir. 2021) and *United States v. McGee* (7th Cir. 2021), both of which recognized that district courts have independent authority to evaluate compassionate release motions. This fight will not be easy, but it is necessary to preserve the constitutional balance that protects every person accused or convicted of a federal crime.

If you or a loved one is facing barriers to compassionate release because of this unlawful directive, you need experienced legal counsel who understands the constitutional stakes and knows how to fight back. Contact our firm today for a confidential consultation—we have the expertise and the commitment to challenge executive overreach and ensure that your case is heard by a neutral judge, not an administrative bureaucracy. Do not let the government’s unlawful policy keep you from the justice you deserve; call us now to schedule your consultation.