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COMPASSIONATE RELEASE IS NEITHER EASY NOR ESPECIALLY FAIR

One study and two decisions last week illustrate the depressed state of compassionate release motions filed under 18 USC § 3582(c)(1)(A).

It is almost an article of faith among federal prisoners that among the first motions filed with a district court is a motion for the court to appoint a lawyer to file and argue whatever the movant wants to file. The implicit assumption is that the federal courts have an unlimited number of lawyers on their practitioners’ rolls awaiting such appointments and an unlimited budget to pay them with.

Neither is the case.

In a study published last week in the Ohio State Law Journal, Georgetown University law professor Amanda Rogers reported the jumbled state of affairs across the 94 federal districts regarding the appointment of lawyers to assist inmates with compassionate release motions. While there is neither a constitutional nor a statutory right to counsel in a post-conviction motion, the short answer is that a few do, a few don’t, and most of the districts are all over the map.

Seventeen districts (18%) appointed the Federal Public Defender office to represent previously represented defendants or those now indigent who may qualify for First Step Act relief or for compassionate release. A few courts limited representation to those who were previously entitled to appointed counsel or who are now unable to hire an attorney, when their potential compassionate release claims are based on medical condition or age.

Thirty-four courts (36%) streamlined disclosure by ordering the United States Probation Office or clerk to disclose the presentence report, BOP SENTRY reports, and other relevant records to the FPD or other counsel “for the purpose of determining eligibility for compassionate release.”

Forty-eight district courts (slightly more than half) have failed to issue any orders to guide appointment of counsel for compassionate release motions, although most of these recognize their discretion to appoint. Professor Rogers wrote that many of the courts “failed to issue similar orders for compassionate release motions… Judges vary greatly across district courts regarding (1) whether their discretion to appoint comes from precedent or statute and (2) what test to apply in appointing counsel in post-conviction motions.”

Most of those courts applied an “interests-of-justice test,” appointing counsel only when they concluded it was within the “interests of justice” to do so. The term is not defined by 18 USC § 3006A (the statute relating to appointment of counsel in criminal cases, and its meaning is thus every bit as squishy as you might think.

A few district courts issued orders that stopped appointment of counsel in compassionate release cases altogether. A few others have not outright prohibited it but have issued orders dissuading judges from appointing counsel in such cases.

Anyone wanting appointed counsel for a compassionate release motion needs a strong factual basis for the motion, the right district court, and plenty of luck.

Luck different from what Montez Hall experienced. From a rough childhood, Montez became an accomplished gang member, doing prior jail time for drugs and weapons possession. In one shooting, Montez or others he was with killed the girlfriend of a rival gang member. Finally, he and some others murdered a soldier after a nightclub altercation.

The Feds swept up the gang, and Montez went down hard. He pled to several racketeering activities, including drug trafficking, robbery, murder, bribery, and extortion, and to  18 USC § 924(j) – use of a gun in a crime where murder resulted. At age 20, Montez got a 30-year federal sentence.

In 2024, Montez filed a motion for compassionate release, arguing that his health issues, prison conditions, sentencing disparities, his youth at the time of the crime, and his post-offense rehabilitation supported resentencing him to time served. The district court reduced his sentence by eight years because Montez had engaged in substantial rehabilitative efforts: he had become a suicide watch companion, studied for a degree in business administration, learned new skills, renounced his gang, and began practicing a religion. Also, the court emphasized that Montez’s youth played a role in the crimes: he was just “18 (almost 19) at the time” of the murders.

A few weeks ago, the 6th Circuit reversed the 8-year reduction, holding that district courts can’t consider “youth” or “sentencing disparities” because “facts that existed at sentencing cannot later be construed as ‘extraordinary and compelling reasons’ to reduce a final sentence.” And district courts can’t consider a “change in the law” because of the non-retroactivity doctrine. That left only rehabilitation, which failed because 28 USC § 994(t) holds that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

Meanwhile, last week, the 8th Circuit denied compassionate release to Isaac Loggins, who robbed a series of banks 20 years or so ago and got consecutive 18 USC § 924(c) sentences for using a gun. His 504 months would have been just 240 months if he had been sentenced after the First Step Act passed, and he sought compassionate release due to the gross disparity in his sentence.

If you think the Supreme Court’s Rutherford v. United States decision last May was fatal to Isaac’s motion, you’d be right. And the 8th Circuit agreed, ruling that “[c]onsistent with the Supreme Court’s binding decision in Rutherford, we hold that the First Step Act’s nonretroactive statutory changes to § 924(c), like other nonretroactive legal changes, cannot, whether offered alone or in combination with other insufficient factual considerations, constitute “extraordinary and compelling” reasons for a sentence reduction under 18 USC 3582(c)(1)(A).”

Rogers, Amanda, Importance of Counsel in Compassionate Release Cases, 86 Ohio State Law Journal 443 (July 9, 2026)

United States v. Hall, Case No. 24-6094, 2026 U.S.App. LEXIS 18561 (6th Cir. June 25, 2026)

United States v. Loggins, Case No. 24-1488, 24-1569, 2026 U.S.App. LEXIS 20175 (8th Cir. July 10, 2026)

~ Thomas L. Root