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COMPASSIONATE RELEASE HIT BY SCOTUS, BUT THE SKY’S NOT FALLING YET
The Supreme Court last week confirmed the legality of restrictions imposed by most federal circuits on what may be considered “extraordinary and compelling reasons” for sentence reduction under 18 U.S.C. § 3582(c)(1)(A), the so-called compassionate release statute.
The decisions – Rutherford v. United States and Fernandez v. United States – are disappointing. But the sky’s not falling.
To win compassionate release, a prisoner must show the existence of extraordinary and compelling reasons for grant and that the prisoner is not a danger to the community. The Court must find that the compassionate release “is consistent with applicable policy statements issued by the Sentencing Commission” and must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”
In Fiscal Year 2025, 2,795 compassionate release motions were filed nationwide, with 14% of those motions granted.
In last week’s double-barreled blast at compassionate release, the Supremes ruled in Rutherford that an inmate serving a long sentence that he would not get today because of a non-retroactive change in the law. The usual example is someone with three 18 USC § 924(c) convictions from before 2018 because he carried a gun while selling marijuana every day for three successive days. Before the First Step Act passed, he would have gotten 25 years consecutive time for the second and third days’ gun, for a combined mandatory 18 USC § 924(c) sentence of at least 55 years. After FSA, he would have gotten only 15 years at minimum.
The Sentencing Commission said that such a sentence disparity due to a change in the law constituted one of its list of extraordinary and compelling reasons even though the change in the law was not declared retroactive by Congress. The Supreme Court disagreed.
In Fernandez, the defendant convinced the judge that while a 28 USC § 2255 motion could not be granted based on the evidence of innocence he presented to the court, the court should award compassionate release in part because of the judge’s serious reservations about the credibility of co-conspirators who had rolled on the defendant and testified (rather unconvincingly) that he was guilty.
The Supremes ruled that a compassionate release motion could not be used as an end-around on 28 USC § 2255 habeas corpus by making questions about the reliability of the conviction into extraordinary and compelling reasons for the grant of compassionate release.
The decisions, both written by Justice Amy Coney Barrett, are troubling. Both the 6-3 Rutherford and the 8-1 Fernandez decisions seemed as though the majority was writing its own common-law policy on what can never be considered “extraordinary and compelling reasons” for a sentence reduction. But Congress explicitly authorized the Sentencing Commission, not the federal courts, to determine what constituted extraordinary and compelling reasons for a compassionate release reduction. Both cases read like a policy dispute between SCOTUS and USSC, and the law says that USSC should win that dispute every time.
Rutherford holds that “[t]he statutory text and structure make clear that Congress’s nonretroactive change to § 924(c) — considered by itself or in combination with other factors—cannot make a prisoner eligible for compassionate release. To the extent that it counsels otherwise, the Commission’s policy statement is invalid… The disparity that results from Congress’s decision to leave a sentence untouched cannot serve as one of those [extraordinary and compelling] reasons.”
In Fernandez, the Court asserts “the supposed invalidity of a conviction is not among the ‘extraordinary and compelling reasons’ that justify compassionate release… [A] reason is not ‘compelling’ if Congress has channeled it through postconviction statute.” These seem like Court-made policies, not defensible statutory construction.
Sen Richard Durbin (D-IL), one of the FSA’s authors, issued a statement saying, “When we wrote the First Step Act, we clearly sought to expand federal judges’ discretion to consider compassionate release as part of an effective smart-on-crime approach to reforming our justice system. We will be exploring options to uphold the integrity of the First Step Act, including further legislation.”
Ohio State University law prof Doug Berman, writing in his Sentencing Law and Policy blog, said,
I think what the ‘statutory text and structure make clear’ in this context is that the US Sentencing Commission, and only the USSC, is properly authorized to make law and policy regarding ‘what should be considered’ grounds for sentence reductions. I hope the USSC (as well as lower courts) will see the new restrictions concocted by SCOTUS in Fernandez and Rutherford to be limited and narrow so that district courts continue to have proper authority to grant sentence reductions for various reasons when a federal prison term no longer advances the purposes of punishment set forth by Congress in 18 USC § 3553(a). But, given the vibes of these opinions, it seems likely the Justice Department will claim that they dramatically remake possible grounds for sentence reductions, and also likely that lots of district courts will now consider their reduction authority to be greatly constrained.
Still, the holdings will not change compassionate release for most compassionate release movants, who can continue to plead the extraordinary and compelling reasons for grant listed in USSG 1B1.13(b).
USSC, Compassionate Release Data Reports (May 20, 2026)
Rutherford v. United States, Case No. 24-820, 2026 U.S. LEXIS 2294 (May 28, 2026)
Fernandez v. United States, Case No. 24-556, 2026 U.S. LEXIS 2295 (May 28, 2026)
Sentencing Law and Policy, What are the contours of the new sentence-reduction law and policy concocted by SCOTUS in Fernandez and Rutherford? (May 28, 2026)
~ Thomas L. Root