Maryland Law Review
Volume 68, Issue 4
Extraordinary and Compelling: A Re-examination of the Justifications for Compassionate Release
By William W. Berry III [Full Text]
Federal law contains a rarely used provision that permits the immediate release of federal prisoners. This safety valve provision requires the Director of the Bureau of Prisons to make a motion on behalf of the prisoner in order to secure the prisoner’s compassionate release. Far from being a veiled version of parole, this compassionate release provision is to be used only in circumstances deemed “extraordinary and compelling.” While the Bureau of Prisons has read this language very narrowly for many years, considering only terminally ill inmates as candidates for compassionate release, the United States Sentencing Commission modified its Commentary to the Sentencing Guidelines in November 2007, defining for the first time criteria for determining what should be deemed “extraordinary and compelling.” Specifically, the Commission’s guideline commentary provides that extraordinary and compelling circumstances may include: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child.
This Article considers the theoretical justifications for compassionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of “extraordinary and compelling.” As explained herein, there is a need for such a framework given the Bureau of Prisons’ general unwillingness to consider compassionate release unless it is for “medical parole.” First, this Article argues that the state’s purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates. As a result, this Article proposes that the basis for compassionate release should lie in the broader interests of the state. Thus, this Article contends that the non-penal interests of the state (in light of the “extraordinary and compelling” factual circumstance) must clearly outweigh the state’s penological interest in the inmate serving the entire sentence before compassionate release may be justified.
Citation: William W. Berry III, Extraordinary and Compelling: ARe-examination of the Justifications for Compassionate Release, 68 Md. L. Rev. 850 (2009).
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