The United States Sentencing Commission, Compassionate Release, and Judicial Discretion: The 2022–2023 Amendment Cycle

ABSTRACT

The Sentencing Commission is meeting for the first time in three years to promulgate guideline amendments. This amendment cycle promises to be among the Commission's most consequential. Among its tasks, the agency must update USSG 1B1.13, the policy statement that governs reduction of sentence for "extraordinary and compelling reasons.” So-called "compassionate release” has taken on new significance since Congress amended the authorizing statute in the First Step Act of 2018. Because the Commission had no quorum at the time and for several years after it has been unable to amend the guideline to conform to changes made by the FSA. Creative litigation has transformed compassionate release from the last resort for incarcerated people who were aging, debilitated, or dying to one used for a variety of situations deemed extraordinary and compelling by federal courts. These include grants based on reasons ranging from vulnerability to COVID all the way to the injustice of continued incarceration of people serving sentences the FSA lowered but did not make retroactive. Confronting the Commission is the question of whether and to what extent it might cabin the discretion judges have been exercising to recognize various grounds for compassionate release, including intervening changes in the law that make the sentence inequitable.In this article, the author traces the history of compassionate release, discusses the transformation of its use since passage of the FSA, explores the various proposals the Commission has presented for comment, and presents the choices through the lens of one incarcerated person's experience.