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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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