What’s Next After Supreme Court Limits Compassionate Release for Excessive Sentences

The Supreme Court decided a major case last month that will make it more difficult for people to benefit from federal compassionate release, a policy that allows federal judges to shorten some prison terms if “extraordinary and compelling reasons” require it. Resolving appeals from two men in federal prison, the Court ruled 6–3 that judges cannot consider extreme sentence disparities and the impact of outdated laws when deciding whether to grant compassionate release. In doing so, it invalidated guidance by the independent, bipartisan U.S. Sentencing Commission that would have permitted this relief.

The outcome is a blow for reformers seeking to restore fairness in federal sentencing, ignoring the evidence of how these policies have actually been used. But the Court’s decision needn’t be the end of this story. Congress can amend the compassionate release statute to clarify that judges may consider sentencing disparities when weighing a compassionate release motion.

Compassionate release was created in a 1980s rewrite of federal sentencing laws. The text of the law is simple, authorizing courts to shorten a lawful prison sentence if “extraordinary and compelling reasons warrant such a reduction.” Congress left it to the Sentencing Commission to define what those reasons might be, subject to one restriction: Rehabilitation alone would not be enough.

For the first 30 years of the law’s existence, only prison wardens could file a motion for compassionate release on behalf of those in federal custody. They did so very rarely, resulting in around 24 releases per year. Most were based on health or family circumstances, such as terminal illness.

That changed with the bipartisan First Step Act of 2018, which permitted people in prison to file their own motions for compassionate release. Less than two years later, the Covid-19 pandemic struck, and the newly amended statute became a critical tool that allowed judges to release people with complex health needs from the high-risk setting of federal prison. But motions were still rarely granted — fewer than 17 percent succeeded between 2020 and 2022.

At the same time, another legal question emerged. Congress had passed several sentencing reform laws since the 1980s, shortening prison terms that were extreme or created severe racial disparities. But most of these changes did not apply to people already sentenced to prison. These nonretroactive changes meant people continued to serve decades-long prison terms even though they would receive a much shorter penalty if sentenced today. Could those disparities be “extraordinary and compelling reasons” justifying a sentence reduction under the compassionate release statute?

Courts divided over the answer. A New York federal court reduced a “manifestly unjust” 50-year term to 25 years, based in part on intervening changes in the law. The Tenth Circuit Court of Appeals affirmed a decision reducing a 55-year term to time served (roughly 10 years) on similar grounds. But the influential Chicago-based Seventh Circuit Court of Appeals disagreed, as did others.

To provide clarity, the Sentencing Commission approved a “policy statement” clarifying when such changes in law might justify compassionate release. Under the commission’s new rule, which went into effect in November 2023, nonretroactive changes in law could be considered a basis for compassionate release if the defendant had served at least 10 years of an “unusually long sentence” and there was a “gross disparity between the sentence being served and the sentence likely to be imposed” today. (The Brennan Center filed a comment with the commission supporting a version of this policy.)

That could have ended the matter. But federal prosecutors began opposing compassionate release motions by arguing not just that relief was unwarranted in the specific case, but that the commission’s policy statement was unlawful and exceeded the broad authority delegated to the commission by Congress.

These issues came before the Supreme Court in a pair of cases, Carter v. United States and Rutherford v. United States. Daniel Rutherford was sentenced to 42.5 years in prison at age 22 for a pair of armed robberies. Had he been sentenced after the First Step Act changed penalty calculations in some firearm cases, he would have faced a much shorter, 14-year mandatory minimum. Johnnie Markel Carter faced a similar predicament. His own 70-year prison term, for a series of bank robberies committed while in possession of a weapon, might have been three decades shorter if the First Step Act’s changes to penalties in some firearm cases had been in effect when he was sentenced.

Both sought sentence reductions under the compassionate release statute. The Third Circuit Court of Appeals affirmed denials of both their motions, reasoning, in an opinion on Rutherford’s case, that the compassionate release statute did not permit sentencing reductions based on nonretroactive changes in the law and that the commission’s policy statement could not change that. Carter and Rutherford both appealed to the Supreme Court, each arguing that the commission was within its authority to promulgate the policy statement and that their motions should be evaluated accordingly.

This set the stage for the Court to consider the breadth of the compassionate release statute and the validity of the Sentencing Commission’s interpretation.

At oral argument, federal prosecutors framed the commission’s policy statement as a threat to the separation of powers. Congress had deliberately chosen not to authorize retroactivity in the First Step Act, the sentencing reform legislation at issue in Rutherford’s and Carter’s cases. Applying the law retroactively through the compassionate release statute, they said, would be an end-run around Congress’s policy judgment.

Ultimately, the Court agreed, affirming the denial of Carter and Rutherford’s motions by a 6–3 vote along partisan lines. Writing for the majority, Justice Amy Coney Barrett reasoned that the extreme sentencing disparities created by the statute under which Carter and Rutherford were sentenced were neither “extraordinary” nor “compelling,” and therefore provided no basis for compassionate release. Since Congress only rarely allows people already in prison to benefit from major sentencing reforms, the gap between the sentences Carter and Rutherford received and the ones they would have received today represented an expected and “far from ‘extraordinary’” consequence of congressional reforms. Nor could the resulting disparities be “compelling,” as they were the result of Congress’s policy judgment “not to extend newly reduced penalties to those already sentenced.”

She further reasoned that allowing judges to shorten federal sentences in this manner due to newly reformed sentencing laws “would undermine Congress’s choice to leave [pre-reform] sentence[s] intact.” If courts could consider sentencing disparities as a basis for compassionate release, the results could extend “well beyond nonretroactive sentencing amendments to disagreements with the length of any punishment on the books.” This outcome would risk judges substituting their own beliefs about the fairness of a long sentence, thus eroding Congress’s sole authority to determine federal crimes and their prescribed penalties — a concern Chief Justice John Roberts had also expressed at oral argument. Barrett closed by concluding that the Sentencing Commission’s policy statement was “invalid,” to the extent that it permitted sentencing reductions that conflicted with the Court’s reading of the compassionate release statute.

Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Their opinion argued that “Congress directed the United States Sentencing Commission, not this Court, to define what constitute ‘extraordinary and compelling reasons’ for incarcerated individuals to receive a sentence reduction under the compassionate-release statute.” In their view, the commission’s 2023 policy statement, delineating specific circumstances under which district courts could consider sentencing disparities created by changes in law, “fits comfortably within these capacious parameters.”

The dissent also called into question the majority’s suggestion that the commission’s policy statement permitted relief in ordinary cases, citing data showing how rarely it was used in practice. “Almost no one has received relief under the Commission’s criteria,” Sotomayor wrote, further proving that the commission’s policy statement had not “opened the floodgates to sentence reductions in unexceptional cases.”

Nor, in Sotomayor’s opinion, had the majority sufficiently explained why the commission’s case-by-case approach “is inconsistent with Congress’s categorical nonretroactivity decision.” The commission’s guidance only permitted courts to give “full consideration of the defendant’s individualized circumstances” while weighing any change in law in specific circumstances: when the disparity is “gross,” the sentence is “unusually long,” and the defendant has served at least 10 years of their sentence. That kind of individualized and highly factual inquiry was inherently judicial and wouldn’t come close to intruding on the categorical policy judgments reserved to Congress.

The Supreme Court’s decision will have the immediate and unfortunate effect of narrowing the circumstances that qualify as extraordinary and compelling under federal compassionate release rules. This undercuts judges’ discretion to correct outdated, and now disavowed, excessive federal prison sentences in qualifying cases. And lower courts will need to work out what, if anything, remains of the commission’s policy statement.

However, the Court’s decision leaves one clear opportunity to settle this contested area of law, at least for the time being. The majority opinion focused on the type of relief the compassionate release statute did or did not authorize. Congress could respond by amending the statute and clarifying that extreme sentencing disparities, like the ones faced by Carter and Rutherford, are exactly the type of “extraordinary and compelling” circumstances the commission should consider.

Such legislation could theoretically gain bipartisan support. Congress enacted a much more expansive program during the Covid-19 pandemic, transferring thousands of people to home confinement before they would otherwise have been eligible. The result: extremely low recidivism rates, reduced infection risks, and substantial savings for taxpayers. There is every reason to believe a push for expanded federal compassionate release would be similarly successful.

With research support from Aidan Garagic and Sophia Attie