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68 Md. L. Rev. 850 (2008-2009)
Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release

handle is hein.journals/mllr68 and id is 860 raw text is: EXTRAORDINARY AND COMPELLING: A RE-EXAMINATION OF THE JUSTIFICATIONS FOR COMPASSIONATE RELEASE WILLIAM W. BERRY III* Federal law contains a rarely used provision that permits the immediate release of federal prisoners. This safety valve provision requires the Director of the Bureau of Prisons to make a motion on behalf of the prisoner in order to secure the prisoner's compassionate release. Far from being a veiled version of parole, this compassionate release provision is to be used only in circumstances deemed ex- traordinary and compelling. While the Bureau of Prisons has read this language very narrowly for many years, considering only termi- nally ill inmates as candidates for compassionate release, the United States Sentencing Commission modified its Commentary to the Sen- tencing Guidelines in November 2007, defining for the first time cri- teria for determining what should be deemed extraordinary and compelling. Specfically, the Commission's guideline commentary provides that extraordinary and compelling circumstances may in- clude: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child. This Article considers the theoretical justifications for compas- sionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of extraordinary and compel- ling. As explained herein, there is a need for such a framework given the Bureau of Prisons' general unwillingness to consider com- passionate release unless it is for medical parole. First, this Article argues that the state's purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates. As a result, this Article proposes that the basis for com- passionate release should lie in the broader interests of the state. Thus, this Article contends that the non-penal interests of the state (in light of the extraordinary and compelling factual circum- stance) must clearly outweigh the state's penological interest in the inmate serving the entire sentence before compassionate release may be justified. Copyright © 2009 by William W. Berry III. * Visiting Associate Professor, University of Mississippi School of Law. D. Phil. Candi- date, University of Oxford (UK). Professor Berry would like to thank the Lamar Order of the University of Mississippi for their generous support of this Article, and the Maryland Law Review for their hard work on this piece.

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