Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release

39 Pages Posted: 22 Oct 2008 Last revised: 28 May 2010

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: October 21, 2008


Federal law, unbeknownst to many, includes a provision that permits the immediate release of federal prisoners. This safety valve provision requires that the Director of the Bureau of Prisons 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 Sentencing Commission modified its Guideline commentary in November 2007, defining for the first time criteria for determining what should be deemed "extraordinary and compelling." Specifically, the Commission's guidelines provide that extraordinary and compelling circumstances can 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." First, the 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 argues 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 his/her entire sentence before compassionate release may be justified.

Keywords: sentencing, compassionate release, extraordinary, bureau of prisons, punishment, parole, sentencing commission

Suggested Citation

Berry, William W., Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release (October 21, 2008). Maryland Law Review, Vol. 68, No. 4, 2009, Available at SSRN: https://ssrn.com/abstract=1287946

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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