Amendment to Compassionate Release Policy Statement May Expand Number of Prisoners Granted this Relief

On November 1, 2007, an amended policy statement, U.S.S.C. §1B1.13, goes into effect providing guidance to district courts granting "compassionate release" from prison under 18 U.S.C. § 3582(c)(1)(A).  Whereas the current policy statement permits release for "extraordinary and compelling reasons," the new version fleshes out that phrase by delineating four medical and non-medical circumstances justifying early release, including where (i) the defendant is suffering from a terminal illness, (ii) the defendant is disabled to the extent that his/her ability to provide self-care in a prison environment is "substantially diminished," (iii) the only family member capable of caring for the defendant's minor child(ren) has died or is incapacitated, or (iv) the Director of the Bureau of Prisons determines that other "extraordinary or compelling reasons" exist.

An important caveat regarding these changes is that the motion for release must still be made by the Bureau of Prisons, and needless to say, its track record has been to exercise this discretion very rarely.  Moreover, while the Second Circuit has not yet addressed whether the Bureau of Prisons' power in this area is reviewable, the Circuits that have addressed the issue have concluded it is not.  See, e.g., Fernandez v. United States, 941 F.2d 1488, 1492-1493 (11th Cir.1991); Simmons v. Christensen, 894 F.2d 1041 (9th Cir.1989).
 

At the very least, where the kinds of circumstances described in the amended policy statement exist prior to sentencing, practitioners should cite the new policy in support of motions for variances below the applicable sentencing guideline.