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Compassionate Release Lessons from Rutherford – Update for June 8, 2026

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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.

So what?

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

Compassionate Release Takes It on the Chin – Update for June 2, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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

SCOTUS Oral Argument Lacks Compassion for Compassionate Release Cases – Update for November 17, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ARE YOU DISRESPECTING ME?

An uncomfortable number of Supreme Court justices last Wednesday questioned whether the United States Sentencing Commission overstepped its authority when it amended USSG § 1B1.13(b)(6) to hold that changes in mandatory minimum laws – even when not retroactive – and concerns about actual innocence could be part of a court’s consideration when weighing an 18 USC § 3582(c)(1)(A) compassionate release motion.

I learned as a young lawyer (many years ago) that trying to predict the outcome of an appellate case based on the oral argument was a fool’s errand. Still, the nearly three hours of argument last Wednesday on what should be or should not be extraordinary and compelling reasons judges must consider in granting § 3582(c) sentence reductions provided little reason for optimism.

The issue was whether extraordinary and compelling reasons include factors like trial errors or nonretroactive changes in the law.  Lawyers for Daniel Rutherford and John Carter, two inmates seeking such sentence reductions, argued that the Commission was within its legal authority to say that courts could consider whether the First Step Act’s nonretroactive changes to gun and drug mandatory minimums would have resulted in lesser sentences in their cases.

In a third case, Fernandez v. United States, a district court had granted Joe Fernandez compassionate release in part because the judge felt “disquiet” about the conviction due to questions about whether the witness who had fingered Joe had lied to save his own skin. The 2nd Circuit Court of Appeals rejected the compassionate release, arguing that Joe’s innocence claim should have been brought up in a 28 USC § 2255 habeas challenge instead.

A § 3582(c)(1) sentence reduction, known a little inaccurately as “compassionate release,” permits courts to reduce criminal sentences in certain cases. Before 2018, the Bureau of Prisons was the only entity that could file a motion for such consideration, but the First Step Act eliminated that requirement. The Sentencing Commission is charged by 28 USC § 994(t) with the responsibility for defining what constitutes an extraordinary and compelling reason, and has expanded such to include medical conditions, family circumstances and age. The compassionate release guideline amendment in November 2023 adopted a broader view of compassionate release factors that included changes in the law that would have made a prisoner’s sentence much shorter if those changes had been in force when he got sentenced.

During Wednesday’s arguments, the only Justice of the nine expressing sympathy for Rutherford, Carter, and Fernandez was Ketanji Brown Jackson. All of the others seemed concerned that the changes in USSG § 1B1.13(b)(6) thwarted Congress’s will, would result in a flood of compassionate release motions, and would permit an end-run on § 2255.

Jackson maintained that the § 2255 and compassionate release considerations were not mutually exclusive. Instead, Jackson said compassionate release was intended to work as a safety valve.

“The question is, ‘safety valve for what?” Justice Elana Kagan countered. “Not every safety valve is a safety valve for everything.”

Justice Sonia Sotomayor said a district judge’s doubts about a jury verdict shouldn’t be used as a factor in compassionate release claims. “It happens to every district court judge,” she said. “There’s a case where you really struggle, but can we, in the facts of this case, denote that that is an extraordinary circumstance?”

Justice Neil Gorsuch contended that the judge’s own feelings, even if reasonable, should have nothing to do with the defendant’s circumstances for compassionate release. “I thought, in our legal system, the jury’s verdict on the facts is not something a court can impeach unless it’s clearly erroneous,” Gorsuch said. He suggested that the Commission had been “disrespectful” by substituting its own position on retroactivity for Congress’s.

In the Fernandez case, the Court appeared uneasy with allowing judges to consider factors that also fall under the federal habeas statute. Kagan said that habeas claims face harsh limitations and questioned whether inmates might use compassionate release as an end-run around those prohibitions.

Justice Samuel Alito observed, “The First Step Act was obviously heavily negotiated… and retroactivity is, of course, always a key element in the negotiations. Congress specifically says this is not going to be retroactive to those cases where sentences have already been imposed. And then the [Sentencing] Commission, though, then comes in and says we’re now going to give a second look for district judges to revisit those sentences…”

Justice Amy Coney Barrett asked whether a judge’s disagreement with the mandatory minimums could be enough justification for a compassionate release grant. David Frederick of Kellogg Hansen Todd Figel & Frederick PLLC, representing Rutherford, replied that even if a judge thinks a sentence is too harsh or if it would have been lower after the sentencing reforms, the Sentencing Commission’s guidelines require other factors, like a prisoner’s age, health and family situation, to be part of the overall picture.

Chief Justice John Roberts worried that the Sentencing Commission was opening the floodgates to applications for compassionate release. Currently, the 3rd, 5th, 6th, 7th, 8th and D.C. circuits have ruled that the Commission’s interpretation exceeds its authority and is wrong, while the 1st, 4th, 9th and 10th circuits have allowed courts to consider the disparity between pre- and post-First Step Act sentences.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman – who filed an amicus brief supporting Rutherford, Carter and Fernandez – was pessimistic about the outcome of the cases:

But the Justices seem poised to concoct some new legal limits on equitable sentence reduction motions, though it remains unclear exactly how they will decide to legislate from the bench in this context. There was some interesting discussion during the Fernandez case about which of various possible restrictions relating to § 2255 that the government wanted the Justices to enact. And in Rutherford/Carter, the Justices expressed in various ways which sentencing statutes they thought might create implicit limits on the bases for sentencing reductions. Just how the Justices decide to act as lawmakers and policymakers in this setting will be interesting to see.

Bloomberg Law observed, “The court’s decisions in the cases could have a chilling or stimulating effect on compassionate release petitions. The Sentencing Commission reports they have increased dramatically since passage of the First Step Act and the pandemic, with more than 3,000 filed across the country last year.”

A decision is not expected until next spring.

Fernandez v. United States, Case No. 24-556 (Supreme Court oral argument November 12, 2025)

Rutherford v. United States, Case No. 24-820 (Supreme Court oral argument November 12, 2025)

Carter v. United States, Case No. 24-860 (Supreme Court oral argument November 12, 2025)

Law360, Justices Hint Early Release Factors ‘Countermand’ Congress (November 12, 2025)

WITN-TV, Supreme Court to weigh limits on compassionate release (November 12, 2025)

Courthouse News Service, Supreme Court disquieted by increased judicial discretion over compassionate release (November 12, 2025)

Sentencing Law and Policy, Justices seem eager to concoct limits on grounds for sentence reductions, but what new policy will they devise?  (November 12, 2025)

Bloomberg Law, Justices Eye Scope of Compassionate Release ‘Safety Valve’  (November 12, 2025)

~ Thomas L. Root

Innocence, Disparity, and Judge-Made Law on Tap at SCOTUS – Update for November 11, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COMPASSIONATE RELEASE WEEK

Tomorrow, federal compassionate release takes center stage as the Supreme Court hears oral argument in Fernandez v. United States and Rutherford v. United States.

What Does Compassion Have to Do With Innocence?      Fernandez asks whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that might also be a basis for a 28 USC § 2255 motion to vacate a conviction or sentence (such as a complaint that defense counsel failed to raise an obvious Guidelines mistake at sentencing).

I wrote about the Fernandez case when the 2nd Circuit sent the guy back to prison in 2024, and the lengthy fact pattern is worth revisiting. Suffice it to say here that Joe’s district court acknowledged the validity of the jury’s verdict and Joe’s sentence, while nevertheless holding that “jury verdicts, despite being legal, also may be unjust” and concluding that questions about Joe’s innocence, together with the stark disparity between Joe’s sentence and those of his co-defendants, constituted extraordinary and compelling circumstances under § 3582(c)(1)(A) warranting as sentence reduction to time served.

The 2nd Circuit reversed, holding that Joe’s sentencing disparity was not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute,” and that concerns that Joe might be innocent had to bow to the fact that the post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.”

The 5th and 10th Circuits agree with the 2nd  Circuit. The 1st and 9th do not.

That Was Then, This is Now:         Rutherford asks an even more basic question: whether the Sentencing Commission – which was delegated the authority by Congress to define what circumstances are “extraordinary and compelling” reasons for compassionate release under 18 USC § 3582(c)(1) – can hold that a nonretroactive change in the law (such the First Step Act’s change in 18 USC § 924(c) to eliminate stacking can be a reason for a compassionate release.

Section 403 of the First Step Act of 2018 reduced penalties for some mandatory minimum sentences for using guns in some crimes. The change, however, was not retroactive. Because of the changes, someone sentenced on December 20, 2018, for two counts of carrying a gun while selling marijuana on two different days got a minimum sentence of 30 years. The same sentence imposed two days later would have resulted in a minimum sentence of 10 years.

Under 28 USC § 994(t), the Sentencing Commission is charged by Congress with defining what constitutes an “extraordinary and compelling reason” for compassionate release. Congress placed only one limit on the Commission’s authority: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”

In its 2023 revamping of the compassionate release guideline, the Commission adopted subsection 1B1.13(b)(6), stating that if a defendant had received an unusually long sentence and had served at least 10 years, a change in the law may be considered in determining whether he or she has an extraordinary and compelling reason for a § 3582(c)(1)(A) sentence reduction.

The Rutherford issue, simply enough, is whether the Commission exceeded its authority in making a nonretroactive change in the law a factor to be considered (along with others) in a § 3582(c)(1)(A) sentence reduction.

A RICO Claim?:   Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that an argument in last week’s Supreme Court argument on supervised release (Rico v. United States) goes to the heart of the issues at stake in Rutherford and Fernandez. During the argument, Justice Gorsuch observed that Congress appears to be better situated to resolve the conflict by amending the law, because “the alternative is for us to create a fugitive tolling doctrine pretty whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what the [law] already says.”

   xxxxxxxxxxxxxxNot that RICO…

Berman observed that the Fernandez and Rutherford circuit courts “have been inventing limits on compassionate release motions pretty much out of ‘whole cloth’ and are in the (messy) process of coming up ‘with a whole common law doctrine here to supplement what the [applicable statute] already says.’” Berman argues, “I understand why circuit courts are inclined to invent judge-made limits on compassionate release motions, but that’s not their role in this statutory sentencing context. Congress makes sentencing law based on its policy judgments, and it has also expressly tasked the expert U.S. Sentencing Commission with ‘promulgating general policy statements… [describing] reasons for sentence reduction.’ 28 USC § 994(t). If the government does not like how this law is written or gets applied, it should be making its case for legal change to Congress and/or the Sentencing Commission, not to the Supreme Court.”

Berman noted that in Koon v. United States, the Supreme Court 30 years ago said that “it is inappropriate for circuit judges to be developing a “common law” of sentencing restrictions when that’s a job only for Congress and the Sentencing Commission. That Justice Gorsuch is focused on similar concerns in another statutory sentencing context seems significant.”

Fernandez v. United States, Case No. 24-556 (oral argument Nov 12, 2025)

Rutherford v. United States, Case No. 24-820 (oral argument Nov 12, 2025)

Sentencing Law and Policy, Do Justice Gorsuch’s concerns about judge-made law foreshadow big issue in compassionate release cases? (November 5, 2025)

Koon v. United States, 518 US 81 (1996)

~ Thomas L. Root

Former BOP Officials Support Supreme Court Compassionate Release Petition – Update for May 29, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FORMER BOP OFFICIALS SUPPORT COMPASSIONATE RELEASE CERTIORARI

scotus161130A month ago, I reported that the 6th Circuit ruled that USSG § 1B1.13(b)(6), the compassionate release guideline subsection that lets courts consider overly long sentences that could not be imposed under current law, exceeded the Sentencing Commission’s authority. Several other circuits have held the same, notably the 3rd Circuit in United States v. Rutherford.

Rutherford is now before the Supreme Court on a petition for certiorari. The Justices have already relisted the case for more consideration (usually an indication that it is getting a serious look) at tomorrow’s conference.

Evidence of the Court’s interest came in Tuesday’s announcement that the Court would review a related issue, Fernandez v. United States. The issue in that case is whether whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also grounds for setting aside a sentence under 28 USC § 2255, the federal habeas corpus statute that can be used to attack the constitutionality of a conviction or sentence.

We'll see about that...
We’ll see about that…

In Fernandez, a district court granted the prisoner a “compassionate release” for reasons that included the court’s belief that there was substantial evidence that he was actually innocent of the murder and that his sentence was disparately long compared to those of his co-defendants (who became informants). The 2nd Circuit reversed (and ordered Joe back to prison), holding that factors that would work for a § 2255 motion could not be relied on for § 3582(c)(1)(A) compassionate release.

The Circuit’s holding was contrary to decisions of the First and Ninth Circuits, which have each held that district courts are not restricted from considering matters under 18 USC § 3582(c)(1)(A) other than the sole restriction – rehabilitation alone cannot support compasionate release – set forth in the law by Congress. The Supreme Court will decide what limits, if any, cabin a judge on what he or she may consider as extraordinary and compassionate reasons for compassionate release.

Fernandez is Rutherford’s spiritual cousin. I would not be surprised to see certiorari granted to Rutherford, and the two cases being combined for argument and decision.

Rutherford is notable for something else: Supporting petitioner Rutherford are amicus briefs, including ones filed by FAMM, six clinical law school professors, and 12 former federal judges. Most interesting may be an amicus brief by former Bureau of Prisons officials (now corrections consultants) represented by civil rights attorney Scott Lewis at Boston firm Anderson & Krieger.

prisonhealth200313Spotlighting the BOP healthcare crisis, the brief argues that expanding access to compassionate release for inmates serving unusually long sentences would benefit the BOP because “aging, unhealthy inmates consume a disproportionate share of BOP’s scarce resources, which has cascading effects on federal prison operations and the safety and security of BOP staff, as well as inmates… [a]nd the thousands of prisoners potentially eligible for compassionate release who are serving ‘unusually long sentence[s]’ with ‘gross disparity…’ are especially likely to become elderly and unhealthy or disabled in prison.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

Fernandez v. United States, Case No. 24-556 (certiorari granted May 23, 2025)

Rutherford v. United States, Case No. 24-820 (petition for certiorari pending)

Brief of Amici Curiae Former Bureau of Prisons Officials In Support of Petitioner, Rutherford v. United States (filed March 5, 2025)

– Thomas L. Root