In December 2019, the world was introduced to COVID-19—a severe acute respiratory disease that would ultimately wreak havoc in communities across the globe. In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death. Estimates suggest that roughly 620,000 people contracted the disease while incarcerated, resulting in nearly 3,000 deaths. The actual toll is likely much greater. As the pandemic progressed, incarcerated individuals sought relief through the statutory mechanism known as compassionate release. They argued—to varying degrees of success—that the “extraordinary and compelling” nature of the pandemic, in combination with their individual circumstances, justified a sentence reduction or early release.

This Note examines how federal courts considered compassionate release requests as they navigated the unique legal landscape engineered by the pandemic. It focuses specifically on the disparate outcomes that resulted from the vast discretion granted to federal judges in adjudicating petitions. While the fact-intensive nature of compassionate release cases renders comparison challenging, this Note argues that the current system results in inequitable, geographic-based outcomes. In many cases, the prime indicator informing whether an incarcerated individual was released was the judge and courthouse before them. In response, this Note calls on the newly revitalized United States Sentencing Commission to offer uniform guidance to federal courts on the most effective ways to approach compassionate release petitions moving forward.

The full text of this Note can be found by clicking the PDF link to the left.


“Our social distancing took effect with the jury’s verdict,” wrote Derek Trumbo, who was incarcerated in Burgin, Kentucky during the height of the COVID-19 breakout in 2020. 1 Caits Meissner, Works of Justice: Temperature Check, COVID-19 Behind Bars, Vol. One, PEN Am. (Apr. 1, 2020), https://pen.org/temperature-check-1/#dispatch [https://​‌perma.cc/725V-D9C3]. While many of those incarcerated have felt socially distant from their loved ones since well before the coronavirus pandemic, their ability to physically distance themselves from others—namely, others incarcerated and corrections officers—substantially decreased once behind prison bars. Since the beginning of the pandemic, there have been more than 613,433 cases of COVID-19 in U.S. prisons. 2 National COVID-19 Statistics, COVID Prison Project, https://​covidprisonproject.com/data/national-overview/ [https://perma.cc/C25N-Z8Z4] (last visited Aug. 26, 2022); A State-By-State Look at 15 Months of Coronavirus in Prisons, The Marshall Project (July 1, 2021), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/K87K-9R4H]. During that same period, more than 2,663 incarcerated persons have died from COVID-19. 3 The COVID Prison Project Tracks Data and Policy Across the Country to Monitor COVID-19 in Prisons, COVID Prison Project, https://covidprisonproject.com/ [https://​‌perma.cc/A7UB-TP7E] (last visited Dec. 30, 2021). Also during that time period, approximately 31,000 individuals applied for compassionate release; only about thirty-six of those requests were granted directly by the Bureau of Prisons (BOP). 4 See Federal Prison Officials Granted Only 36 of 31,000 Compassionate Release Requests During Pandemic, Equal Just. Initiative (June 16, 2021), https://eji.org/news/‌​federal-prison-officials-granted-only-36-of-31000-compassionate-release-requests-during-pandemic/ [https://perma.cc/Q3QP-5J2N]. Throughout the pandemic, dozens of articles on prison conditions were published, putting the horrors occurring behind bars on full display. 5 See, e.g., Eddie Burkhalter, Izzy Colón, Brendon Derr, Lazaro Gamio, Rebecca Griesbach, Ann Hinga Klein, Danya Issawi, K. B. Mensah, Derek M. Norman, Savannah Redl, Chloe Reynolds, Emily Schwing, Libby Seline, Rachel Sherman, Maura Turcotte & Timothy Williams, Incarcerated and Infected: How the Virus Tore Through the U.S. Prison System, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/interactive/2021/04/10/us/covid-prison-outbreak.html (on file with the Columbia Law Review); Conor Friedersdorf, Opinion, Can’t We at Least Give Prisoners Soap?, Atlantic (Apr. 1, 2020), https://​www.theatlantic.com/ideas/‌archive/2020/04/make-soap-free-prisons/609202/ (on file with the Columbia Law Review); John J. Lennon, I’m Incarcerated. This is My Covid Lockdown Story., N.Y. Times (Apr. 6, 2021), https://www.nytimes.com/2021/04/06/​magazine/prison-covid.html (on file with the Columbia Law Review) (last updated May 6, 2021). These articles encouraged the American public to consider the pandemic from the perspective of those incarcerated and to ruminate on new ques­tions: How does one practice safe handwashing protocols when soap is unavailable and hand sanitizer is banned? 6 Lauren-Brooke Eisen & Jennifer Weiss-Wolf, No Soap. Broken Sinks. We Will All Pay for Coronavirus Ravaging Prisons., Brennan Ctr. for Just. (Apr. 10, 2020), https://​www.brennancenter.org/our-work/analysis-opinion/no-soap-broken-sinks-we-will-all-pay-coronavirus-ravaging-prisons [https://perma.cc/99C3-8YSR]. How does one practice social distancing, as recommended by the Centers for Disease Control and Prevention (CDC), when confined to a building that has more people incarcerated than it was designed to hold? 7 Covid-19’s Impact on People in Prison, Equal Just. Initiative (Apr. 16, 2021), https://eji.org/news/covid-19s-impact-on-people-in-prison/ [https://perma.cc/99JX-FQPF]. The pandemic-era situation within American jails has been aptly described as “lethally systemic.” 8 Lee Kovarsky, Pandemics, Risks and Remedies, 106 Va. L. Rev. Online 71, 71 (2020). In the prison where Mr. Trumbo was incarcerated, an outbreak of coronavirus resulted in more than 65% of the population of 1,200 individuals testing positive at once. 9 Steve Rogers, UPDATE: Coronavirus Outbreak Continues at Northpoint Prison, ABC 36 WTVQ (Dec. 29, 2020), https://www.wtvq.com/northpoint-prison-leads-state-in-current-prison-covid-outbreak/ [https://perma.cc/9LBH-E9KE]. While options for protection from the coronavirus within prison walls were limited, those incarcerated turned to another strategy in attempting to avoid the virus: release from prison.

Compassionate release, also known as the BOP’s reduction-in-sentence program, was born out of the Sentencing Reform Act of 1984 (SRA). 10 Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 U.S.C.). It allowed the BOP to petition district courts to modify individ­uals’ original sentences if certain “extraordinary and compelling” reasons existed. 11 18 U.S.C. § 3582(c)(1)(A) (2018) (codified as amended at 18 U.S.C. § 3582(c)(1)(A)(i)). Today, as a result of the FIRST STEP Act of 2018, judges play a larger role in reviewing and releasing individuals. 12 Nina J. Ginsberg, Compassionate Release: The Nuts and Bolts, Champion, Jan.–Feb. 2020, at 2. The Act revitalized the compassionate release program by enabling courts to directly grant a request for release after finding: (1) that the defendant has exhausted his or her administrative remedies or waited thirty days from the date of orig­inal request; (2) that extraordinary and compelling reasons exist to war­rant reduction; (3) that the defendant is not a danger to the community; and (4) that the reduction is consistent with the sentencing factors found in 18 U.S.C. § 3553(a)—the statute on “[i]mposition of a sentence.” 13 18 U.S.C. § 3553. After the passage of the FIRST STEP Act, some circuit courts have clarified which factors are outcome-determinative to a compassionate release request. For example, in 2021, the Sixth Circuit held that the fact that a defendant is a danger to the community is not, alone, enough to deny a request for compassionate release. See United States v. Sherwood, 986 F.3d 951, 953–54 (6th Cir. 2021) (holding that the “requirement that the defendant not be a danger to the community no longer provides an independent basis for denying compassionate release”). Theoretically, this policy might seem like the perfect avenue for an indi­vidual in prison to find COVID-19 related relief, especially so for an individual with comorbidities, or preexisting conditions that make one more likely to become very ill with COVID-19. 14 See People With Certain Medical Conditions, CDC, https://www.cdc.gov/​coronavirus/2019-ncov/need-extra-precautions/‌people-with-medical-conditions.html [https://perma.cc/MAF4-HWCT] [hereinafter CDC, Medical Conditions] (last updated Oct. 19, 2022) (listing health conditions that make a person “more likely to get very sick from COVID-19”); Jamie Furia & Carly Coleman, Pandemic Is Changing Compassionate Release Calculus, Law360 (Jan. 14, 2021), https://www.law360.com/articles/1343757/​pandemic-is-changing-compassionate-release-calculus [https://perma.cc/8GK2-L2L7] (“Applicants seek to satisfy the extraordinary and compelling standard by demonstrating that they suffer from one or more of the many chronic medical conditions that would increase the likelihood of severe illness if they were to become infected.”). In practice, however, as of the summer of 2021, only 3,221 people had been released from prison through compassionate release since the beginning of the pandemic. 15 Keri Blakinger & Joseph Neff, 31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36., The Marshall Project (June 11, 2021), https://www.themarshallproject.org/2021/06/11/31-000-prisoners-sought-compassionate-release-during-covid-19-the-bureau-of-prisons-approved-36 [https://perma.cc/PK79-C4LW] [hereinafter Blakinger & Neff, The Bureau of Prisons Approved 36]. The advent of COVID-19 vaccines led to even fewer approvals of compassionate release requests, with courts often finding that the extra­ordinary and compelling prong of the aforementioned test could not be met. 16 See United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021) (stating that “for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release”); United States v. Forman, No. 4:15-CR-129(6), 2021 WL 1536491, at *7 (E.D. Tex. Apr. 16, 2021) (holding that “given Forman’s recovery from COVID-19 and his receipt of the vaccine, Forman has failed to establish that sufficient reasons exist regarding COVID-19 that would constitute extraordinary and compelling reasons to release him from prison”).

Courts’ decisions are not uniform, however. 17 See Casey Tolan, Compassionate Release Became a Life-or-Death Lottery for Thousands of Federal Inmates During the Pandemic, CNN (Sept. 30, 2021), https://www.cnn.com/2021/09/30/us/covid-prison-inmates-compassionate-release-invs/​index.html [https://perma.cc/C2JK-NBLQ] (noting that the compassionate release process “has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts”). Incarcerated persons continue to have vastly different outcomes depending on where they are located. 18 Id. For example, Evelyn Cecilia Bozon Pappa’s life sentence—which began in 1997—was reduced to time served in 2021 after a grant of compassionate release. 19 United States v. Pappa, No. 95-00084-CR-LENARD, 2021 WL 1439714, at *1, *5 (S.D. Fla. Apr. 1, 2021). Despite Bozon Pappa’s full vaccination against COVID-19, the court correctly recognized that her preexisting conditions—obesity and hypertension—meant that the vaccine may not be completely effective in protecting her. 20 Id. at *4, *5 n.4. The court cited a previous de­cision in the Western District of Washington, which held that “vaccination during the pendency of the Motion for Compassionate Release . . . should not, and does not, in some way trump the Court’s consideration of the motion.” 21 Id. (citing United States v. Manglona, No. CR14-5393RJB, 2021 WL 808386, at *1 (W.D. Wash. Mar. 3, 2021)). At the same time, other courts have reached the opposite con­clusion, holding, for example, that “[a]lthough Defendant suffers from several chronic medical conditions, his vaccination significantly mitigates the risk that he will contract COVID-19.” 22 United States v. Grummer, 519 F. Supp. 3d 760, 763 (S.D. Cal. 2021). And, as such, “Defendant has not met his burden to demonstrate ‘extraordinary and compelling reasons’ warranting compassionate release.” 23 Id. The differences in the un­derlying circumstances between these two cases are important to consider. A court might reasonably reach different conclusions on the two cases based on different factors. The issue that this Note raises, however, is that courts reach inconsistent conclusions on the same issue—vaccination status and preexisting conditions—regardless of other case-specific factors. This Note questions whether it is reasonable for federal courts to reach such different holdings and whether those outcomes are in line with the spirit of the compassionate release policy.

Part I of this Note explores the history of compassionate release, its intended purpose, and the ways in which the compassionate release doc­trine has evolved over time. It also examines how compassionate release has served its purpose, albeit in a limited way, during the pandemic. Part II introduces the pandemic-specific compassionate release issues that have emerged: namely, the discrepancy among courts in “weighing” various fac­tors, including preexisting conditions, vaccination status, and prior infec­tion with COVID-19; and courts’ reliance on both positive and negative vaccination status as a factor weighing against the granting of compassion­ate release. Some circuits continue to maintain that an individual’s positive vaccination status is, in effect, a complete bar to an extraordinary and com­pelling showing; other courts choose to release vaccinated individuals based on the risk of exposure to COVID-19. In Part III, this Note argues that an individual in federal custody should be just as likely to be granted compassionate release in California or in Texas, in Montana or in Arizona. Having received the vaccination against COVID-19 should not be the rea­son that one individual is forced to stay in prison, while, at the same time, not having received the vaccine also keeps another individual behind bars. This Note concludes by examining the implications of the federal judi­ciary’s scattershot approach to compassionate release during the pandemic and offers a solution—a matrix to be promulgated by the United States Sentencing Commission (USSC)—to standardize the process moving forward.