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April 27, 2023

Compassionate Release

Changes finally approved

This month, the United States Sentencing Commission approved significant changes to the federal sentencing guidelines.

This month, the United States Sentencing Commission approved significant changes to the federal sentencing guidelines.

On April 5, 2023, the United States Sentencing Commission approved significant changes to the federal sentencing guidelines that will, among other things, expand access to and eligibility for compassionate release for those being held in federal prisons. Compassionate release is the process by which those incarcerated may seek early release, whether to community supervision or to their communities, due to extraordinary or compelling circumstances. The ABA called for such changes in its March 10, 2023 letter to the Commission pursuant to the ABA’s recently adopted Ten Principles for Ending Mass Incarceration

These proposed changes to compassionate release were not unexpected – lawmakers and advocates had already been seeking improvements before the COVID-19 health emergency, and the dangerous conditions in federal facilities during the pandemic increased pressure. But for three crucial years, the Sentencing Commission lacked a quorum to act. So, lawmakers expanded compassionate release during COVID, which produced data that helped inform the Commission's actions. For example, as the ABA highlighted in its March letter: "As of August 2022, of the 11,000 individuals who were released from federal prison during the pandemic, only 17 committed new crimes."

One crucial change made by the Commission was the removal of the onerous procedural barrier that required an imprisoned person’s release to be supported by the entity imprisoning him. Now, anyone in federal prison can seek this relief on their own initiative. The new policy also expands the types of health and family needs that justify release, allows judges to consider abuse in prison as a factor, and permits judges to consider whether a subsequent change in law leads a person’s sentence to appear unusually harsh. 

While the Sentencing Commission did not adopt all of the ABA’s recommendations, the changes it implemented are firmly in line with the goals of the Principles for Ending Mass Incarceration. The ABA House of Delegates adopted the principles less than a year ago as a product of the ABA Working Group on Building Public Trust in the American Justice System. The principles incorporate existing ABA policies and authorize new ones that provide guidance to law and policymakers for reversing the nation’s shift to incarceration as a primary strategy for addressing crime. Today, 1 in 3 adults are living with a criminal record, and nearly 7 million people are incarcerated or on probation or parole – the highest such population in the world. 

Follow us @ABAGrassroots to track significant developments involving compassionate release and reentry as they occur.

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