The First Step Act of 2018, which NACDL supported, allows people in federal prison to file compassionate release motions themselves, rather than rely on the Bureau of Prisons to bring a motion on their behalf. This greatly expanded the opportunities for compassionate release.

In response, NACDL, FAMM, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs combined to create the Compassionate Release Clearinghouse. The Clearinghouse identifies those with grounds for compassionate release and connects them with pro bono counsel. During the COVID-19 pandemic, the project greatly expanded to include incarcerated people at risk of serious illness.

To secure compassionate release, one must demonstrate “extraordinary and compelling reasons.” Extraordinary and compelling reasons are defined by the United States Sentencing Commission at §1B1.13. They include:

• Medical circumstances (b)(1)
  • A terminal illness (a serious and advanced illness with an end-of-life trajectory).
  • Individuals who cannot adequately care for themselves (dressing, bathing, feeding) in a carceral environment because of a:
    • serious physical or medical condition, or
    • serious functional or cognitive impairment, or,
    • deteriorating physical or mental health because of aging.
  • Inadequate medical care
    • This provision covers individuals who are suffering from a medical condition and require, but are not receiving, long-term or specialized care, putting them at risk of serious deterioration or death.
  • Public health crisis
    • There is an ongoing infectious disease outbreak that is likely to affect the individual who is at an increased risk of a severe complication if exposed to the infectious disease, and the risk of exposure cannot be diminished in an adequate amount of time.
• Age of the individual (b)(2)
  • This applies to individuals who: (1) are at least 65 years old; (2) are experiencing physical or mental health issues because of the aging process; and (3) have served the lesser of 10 years or 75% of their sentence.
• Family circumstances (b)(3)
  • An individual has minor children (under 18 years old) and the primary caregiver of those children has died or is unable to care for the children.
  • An individual has a child who is 18 years or older, who is incapable of self-care due to a physical or mental disability, and the primary caregiver has died or is unable to care for them.
  • The incarcerated person’s spouse becomes incapacitated and there is no one else who can care for the defendant’s spouse.
  • The incarcerated person’s parent becomes incapacitated and the incarcerated person is the only individual who can be a caregiver for the parent.
• Victims of abuse (b)(4)
  • This provision covers individuals who are survivors of sexual abuse by prison personnel, as well as survivors of physical abuse by prison personnel. If the individual suffered physical abuse, that abuse must result in “serious bodily injury” as defined in the Guidelines at §1B1.1. If the individual endured sexual abuse, the abuse must have involved a sexual act (penetrative, genital contact). In both cases, the misconduct must be established by a finding in a civil, criminal, or administrative proceeding, unless those proceedings are unduly delayed or the individual is facing imminent danger.
• Other reasons (b)(5)
  • This allows judges the discretion to identify unlisted extraordinary and compelling reasons if they are “similar in gravity” to the ones expressly listed above in (b)(1)-(b)(4): terminal illness, serious medical condition, advanced age, extreme family circumstance, and sexual or physical abuse.
• Unusually long sentences (b)(6)
  • This provision gives judges discretion, after full consideration of the prisoner’s individualized circumstances, to determine whether a change in the law that would result in a lower sentence today could be a ground for sentence reduction. The person must have served at least ten years of an unusually long sentence, and there must be a gross disparity between the sentence being served and the one that would be imposed today. (Changes to the Guidelines that are not made retroactive cannot be considered a change in the law for purposes of this ground.)

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