Compassionate Release

Current Practice

Compassionate release is comparatively rare today due to the widespread adoption of fixed or mandatory sentencing schemes and the abolition of parole by [Page 151]many states and the federal government. For example, in the mid-1980s, Congress passed the Sentencing Reform Act abolishing parole and authorizing sentencing guidelines, and adopted a number of laws providing for mandatory minimum sentences. Similarly, in the states the advent of “truth-in-sentencing” laws eliminated some of the existing compassionate release mechanisms—for example, those accomplished through parole—or created conditions incompatible with earlier, more flexible approaches to sentencing reduction. Thus, indirectly and perhaps unintentionally, changes in sentencing law have effectively curtailed the practice of reducing sentences on compassionate grounds (ABA, 2003, p. 2).

States generally have provisions ranging from the explicit to the general that may be used for humanitarian requests. In a 1995 survey, it was found that about only half of the states provide compassionate release mechanisms for the terminally ill (ABA, 1995, p. 6). Others have general methods such as clemency, furlough, and parole that may be used to serve compassionate ends (Aldenberg, 1998, p. 557; ABA, 1995, p. 6; Russell, 1994, p. 836, n. 10; Volunteers of America, 2001, p. 5). The federal government's compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), provides relatively broad authority to the Federal Bureau of Prisons to submit a motion to the sentencing judge for sentence reduction based on “extraordinary and compelling circumstances” (Price, 2001, p. 189).

In some cases, compassionate release is confounded by political concerns, adherence to the principle that respects the finality of sentences, or a lack of guidance about the appropriate grounds for relief (Price, 2001, p. 190, n. 6). Decision makers are constrained to be conservative in their application of compassionate release by a tough-on-crime atmosphere, or fear that those released may reoffend (Aldenberg, 1998, p. 553; Greifinger, 1999, p. 236). Many compassionate release programs are limited to cases where the prisoner is just about to die and require determinations that he or she is unlikely to reoffend or become a threat to public safety (Russell, 1994, pp. 826–827). This means that, where mechanisms exist, as a practical matter they are used sparingly.

...