We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
RUTHERFORD AND THE FUTURE OF COMPASSIONATE RELEASE
Debate over the Supreme Court’s Rutherford v. United States decision continues. The Marshall Project declared that the Supremes were “tightening early prison release.” Forbes said Rutherford and Fernandez v. United States, its companion case, “mark[] a decisive turn in [compassionate release] evolution, pulling the doctrine back toward its more limited origins and rejecting a more expansive vision embraced by the US Sentencing Commission just a few years ago.”
Before 2018, a defendant convicted of two 18 USC § 924(c) counts in the same proceeding for using a gun in a crime of violence or drug offense faced a mandatory minimum of 30 years. An additional 924(c) would bump it up to at least 55 years. The First Step Act changed the law so that three § 924(c) convictions in the same proceeding carried a mandatory minimum of at least 15 years, not a meager sentence but still only 27% of the old punishment.
In an 11th-hour deal to get votes for FSA passage, the Senate chose not to make the change retroactive.
Nevertheless, many believed that compassionate release could not be only as a response to personal hardship but also serve as a limited mechanism to address inequities embedded in sentencing law itself. The 2nd Circuit in United States v. Brooker and 4th in United States v. McCoy led the charge. Then, in the November 2004 Guideline amendments, the USSC added USSG 1B1.13(b)(6), which permitted relying on the fact that a non-retroactive change in the law created a gross sentencing disparity – along with other factors – to support an “extraordinary and compelling reason” for compassionate release.
Many courts began to treat such a disparity as part of the “extraordinary and compelling” analysis, particularly when combined with rehabilitation and other individualized factors. But various federal circuits split on whether this approach was permissible. Some circuits held that nonretroactive changes in sentencing law could not justify compassionate release. Others concluded that such disparities could be considered, especially when they produced grossly disproportionate outcomes
The Rutherford defendant – who had two § 924(c) sentences for using a gun during a bank robbery – argued that the fact that his minimum sentence would have been about a third of what he got pre-FSA for the gun charges supported grant of compassionate release. Not so, SCOTUS said: Disparities created by non-retroactive amendments are not “extraordinary,” but rather a routine feature of legislative reform. Likewise, they are not “compelling,” because they reflect Congress’s intentional decision to leave existing sentences in place.
At the heart of the Rutherford decision is a reaffirmation of congressional intent and the principle of non-retroactivity. The Court emphasized that when Congress reduces a statutory penalty but declines to apply that change retroactively, it is making a deliberate policy choice. Allowing courts to use that same change as a basis for sentence reduction through compassionate release would undermine what Congress had elected to do.
Writing in Forbes last week, Walter Pavlo observed that “[a]t its core, the Supreme Court’s decision reflects a broader commitment to finality in criminal sentencing. The Court emphasized that Congress has the authority to define crimes and set punishments, and that courts must respect the lines Congress draws, including decisions about retroactivity. This emphasis on finality is not new, but it carries particular weight in the context of compassionate release. By limiting the grounds for eligibility, the Court has reinforced the idea that sentence modification is the exception, not the rule.”
The Rutherford decision will have limited effect on compassionate release filings. The Marshall Project reported that judges cited “unusually long sentence and change in law” as part of their rationale for granting release in about 20% of compassionate release cases.
In Fernandez, the defendant was granted compassionate release because the court had doubts about his guilt, despite the fact that he was convicted by a jury after less-than-solid testimony by co-conspirators seeking to save their own skins. The Supreme Court said attacks on convictions belong in 28 USC § 2255 motions, not in compassionafe release motions. Last week, Slate asked “why would an innocent prisoner seek compassionate release?” and then answered is own question: “Because Congress and the Supreme Court have severely limited prisoners’ access to federal habeas corpus relief over the past several decades.”
Rutherford and Fernandez together say compassionate release is not a workaround for procedural limits on correcting legal errors in a criminal case or a substitute for retroactive application of new laws that reduce penalties. Justice Barrett explained that the very term “compassionate release” — which is nowhere found in the statute, by the way – “highlights its focus on granting mercy rather than righting legal wrongs.” But, as former Sentencing Commission ex officio member Jonathan Wroblewski wrote last week in the Sentencing Matters Substack, Justice Barrett provided a roadmap for people seeking compassionate release. In Rutherford, he notes, she repeatedly
underscores that compassionate release is not about the crime itself, the proof of that crime, or changes in the law governing either, but rather about how a defendant’s personal circumstances have changed and who that defendant has now become… As to the meaning of “extraordinary and compelling,” Justice Barrett again is clear. “While the terms ‘extraordinary’ and ‘compelling’ leave room for judgment, they are not so flexible as to encompass any consideration.” “‘Extraordinary’ means ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent’ . . . (‘[o]ut of the usual or regular course or order’). ‘Compelling’ means ‘tending to convince or convert by or as if by forcefulness of evidence’ . . . (‘irresistible, demanding attention, respect’).”
Barrett holds that “the required finding of extraordinary and compelling is ‘a distinct analytical step that imposes independent and ascertainable limits on access to compassionate release.’” As Wroblewski notes, “Barrett effectively endorses a totality of circumstances approach for determining extraordinary and compelling personal circumstances.”
Any movant for compassionate release would do well to make the motion focused on the totality of his or her circumstances. Compassionate release isn’t dead… it’s just become very personal.
Rutherford v. United States, Case No 24-820, 2026 USLEXIS 2294 (May 28, 2026)
Fernandez v. United States, Case No 24-556, 2026 USLEXIS 2295 (May 28, 2026)
The Marshall Project, How The Supreme Court Is Tightening Early Prison Release (June 6, 2026)
Slate, Ketanji Brown Jackson Stands Firm—and Alone—on Compassionate Release (May 29, 2026)
Forbes, Supreme Court Narrows Compassionate Release For Federal Prisoners (June 5, 2026)
Substack, What Compassionate Release Could Still Be (June 4, 2026)
~ Thomas L. Root