In Search of Judicial Compassion: The Cantu-Lynn Divide over Compassionate Release for Federal Prisoners

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Marielle Paloma Greenblatt is a member of the Columbia Law School Class of 2021.

Kevin Zeich was nearly blind, battling terminal cancer, and unable to eat or walk when he filed for compassionate release from federal prison in 2015.[2] Zeich, who was fifty-five at the time, had served twenty-four years of a twenty-seven-year non-violent drug sentence for distribution of methamphetamine. Though he had three years remaining on his sentence, prison doctors believed he had only eighteen months left to live.[3] Upon being diagnosed with advanced bile duct cancer, Zeich applied for compassionate release three times. Zeich’s warden approved one of his requests, but federal Bureau of Prisons (“BOP” or “the Bureau”) officials overrode his approval and rejected his claim, arguing that his life expectancy was “indeterminate.”[4] On Zeich’s fourth try, he was granted compassionate release. He died two days before he was set to head home.[5]

Between 2013 and 2017, the Bureau of Prisons[6] received 5,400 requests for compassionate release from people in federal prison[7] but approved just 6% of them, taking an average of 141 days to make a decision.[8] These delays proved deadly: 266 prisoners, nearly 5% of all applicants, died while waiting for the BOP’s answer.[9] In 2013, a Department of Justice (“DOJ”) report found that the BOP lacked basic timeliness standards for reviewing initial compassionate release requests.[10] The appeals process for individuals denied compassionate release was similarly unregimented: the Bureau failed to consider urgent or special medical circumstances in expediting appeals, even when applicants had life expectancies of less than one year.[11] The DOJ report found that the appellate review process for compassionate release requests could take more than five months to complete.[12]

Given these realities, scholars as well as government watchdog groups have long suggested that compassionate release would benefit from judicial oversight of BOP determinations.[13] In particular, some scholars urged legislative reform to permit people in prison to seek direct review of their compassionate release claims before Article III courts.[14]

On December 21, 2018, Congress empowered Article III judges to overrule the BOP’s compassionate release determination for the first time. The 116th Congress passed and the President signed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (“the First Step Act” or “the FSA”), which included a number of significant changes to federal compassionate release.[15] The FSA alters compassionate release in two ways: first, it gives prisoners the power to appeal the BOP’s denial or neglect of the prisoner’s request for a compassionate release directly to their sentencing court, providing federal district courts the ability to review and overrule BOP decisions for the first time.[16] Second, the Act gives judges newfound discretion to grant release under a catch-all “other reasons” provision. Clemency experts have deemed the Act’s catch-all provision “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention”;[17] indeed, scholars have yet to analyze how U.S. district courts are interpreting and applying the catch-all.

Though it is only in its second year, the Act’s changes to compassionate release have transformed federal prison resentencing. Nearly three times more defendants were granted relief in the first nine months of 2019 alone than in all of 2018.[18] As of October 2020, approximately 1,800 federal prisoners have been granted compassionate release since the FSA’s passage, with the overwhelming majority coming from judicial approvals overturning BOP denials.[19] Many district court judges have responded quickly to their new role under the Act, with some granting relief within just a few days of prisoners’ requests.[20] The COVID-19 epidemic only heightened judicial responsiveness to compassionate release claims, with some judges taking extraordinary efforts, including bypassing time length and exhaustion requirements, in order to release prisoners more quickly.[21]

Yet there is an emerging circuit split between the courts that construe this newfound discretion broadly and those that continue to grant compassionate release only in cases of terminal or debilitating illness.[22] Moreover, the courts that construe their discretion more expansively (which this paper calls “Cantu courts”) continue to use the catch-all “other reasons” provision to grant relief.[23] Cantu courts stand in marked disagreement with the courts construing their discretion narrowly (“Lynn courts”), which have continued to adhere strictly to preexisting policy guidance by federal agencies.[24]

This Note examines the Cantu-Lynn doctrinal split and its implications for the United States’ federal prisoners. The analysis proceeds in three parts. First, Part I considers how the Act altered compassionate release by authorizing courts to engage in BOP oversight and to grant relief to deserving defendants. Part II examines the emerging circuit split concerning whether federal district courts have license to consider an expansive range of factors under the First Step Act. Part II then provides data on the key factors and judicial outcomes across U.S. courts evaluating compassionate release claims. Part III provides a close reading of the Act’s statutory text and builds off of Shon Hopwood’s historical research into “second look” resentencing, ultimately concluding that the Cantu approach to compassionate release criteria best serves Congress’s statutory intent in enacting the FSA. Finally, the Conclusion considers how the Cantu construction could reduce recidivism and promote rehabilitation among America’s federal prisoners.

  1. * J.D. Candidate 2021, Columbia Law School. The author would like to thank Professor Daniel Richman and Professor Shon Hopwood, as well as the staff of the Columbia Human Rights Law Review for their thoughtful work on this piece.
  2. .  Christie Thompson, Frail, Old and Dying, But Their Only Way Out of Prison Is in a Coffin, N.Y. Times (Mar. 7, 2018),
    2018/03/07/us/prisons-compassionate-release-.html (on file with the Columbia Human Rights Law Review).
  3. .  Christie Thompson, Old, Sick, and Dying in Shackles, Marshall Project (Mar. 7, 2018), [].
  4. .  Id.
  5. .  How Much Compassion in ‘Compassionate’ Release?, WNYC Studios: The Takeaway (Mar. 19, 2018),
    segments/despite-compassionate-relief-program-prisoners-find-little [].
  6. .  The BOP, with “over 163,000 people in [its] custody . . . is America’s largest jailer,” making its bureaucratic decisions and leadership particularly worthy of study. Keri Blakinger & Keegan Hamilton, “I Begged Them to Let Me Die”: How Federal Prisons Became Coronavirus Death Traps, Marshall Project (Jun. 18, 2020), [].
  7. .  Although this Note focuses exclusively on federal compassionate release, state prisoners also have access to compassionate release through their parole systems, almost all of which include some provision for compassionate release of terminally ill defendants. See Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 Widener J. Pub. L. 799, 816–36 (1994) (reporting that, in a 50-state and federal survey, Russell found that the federal system is by far the most restrictive for ill prisoners). Because the First Step Act covered only federal reform, state prisoners’ experiences are not included in this analysis, though they represent the vast majority of those imprisoned in the U.S. today.
  8. .  Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., Off. of Legis. Aff., to Sen. Brian Schatz, at 1 (Jan. 16, 2018), [].
  9. .  Thompson, supra note 2, at 6 (presenting empirical findings).
  10. .  See Off. of the Inspector Gen., U.S. Dep’t Of Just., The Federal Bureau of Prisons’ Compassionate Release Program 27–29 (2013) [hereinafter DOJ, BOP Compassionate Release Program] (finding that the BOP does not consider “the special circumstances of medical compassionate release requests” in timeliness standards, and further concluding that the BOP does not consistently expedite the administrative review process, even when inmates had less than a year to live).
  11. .  Id.
  12. .  Id.
  13. . See, e.g., Press Release, U.S. Sent’g Comm’n, U.S. Sentencing Commission Approves Significant Changes to the Federal Sentencing Guidelines (Apr. 15, 2016), [] [hereinafter April 2016 Sentencing Press Release] (“[T]he BOP has failed to use its authority to recommend compassionate release in the past. We encourage BOP to use its discretion consistent with this new policy so that eligible applications are reviewed by a trial judge.”).
  14. .  See, e.g., Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y 833, 912–13 (2016) (suggesting that Congress “eliminate the provision barring a district court from considering a compassionate release petition unless the BOP has asked the court to consider it . . . [because] the recidivism rate for federal prisoners granted compassionate release is far lower than the rate for other federal inmates”).
  15. .  See Shon Hopwood, The Effort to Reform the Federal Criminal Justice System, 128 Yale L.J.F. 791, 795, 816–17, n.114 (2019).
  16. .  Families Against Mandatory Minimums, Compassionate Release and the First Step Act: Then and Now 3, [].
  17. .  RJ Vogt, How Courts Could Ease the White House’s Clemency Backlog, Law360 (Aug. 29, 2019), [] (reporting on the statement of Margaret Love, former U.S. pardon attorney and clemency expert).
  18. .  Oversight of the Federal Bureau of Prisons and Implementation of The First Step Act of 2018: Hearing Before the H. Judiciary Comm. Subcomm. on Crime, Terrorism, and Homeland Sec., 116th Cong. 23–25 (2019) (statement of Antoinette Bacon, Associate Deputy Att’y Gen.) (announcing that, as of October 2019, 109 prisoners had been granted compassionate release, compared to just 34 total in 2018); Dep’t of Just., Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk and Needs Assessment System (2019) (discussing the FSA’s impact in its first six months).
  19. .   The 1,800 number comes from two sources: DOJ reports for 2019 and the Marshall Project’s 2020 reporting. Press Release, Dep’t of Justice, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (January 15, 2020) (announcing that, as of January 2020, “124 requests have been approved, as compared to 34 total in 2018.”); Keri Blakinger & Joseph Neff, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied, Marshall Project (Oct. 7, 2020), [] (“So far, more than 1,600 people have been let out on compassionate release since the start of the pandemic—many of them despite the bureau’s best efforts to thwart them.”); Off. of Sen. Dick Durbin, Durbin, Grassley Introduce New Legislation New, Bipartisan Legislation To Reform Elderly Home Detention And Compassionate Release Amid COVID-19 Pandemic (Jun. 23, 2020), [] (noting that “nearly all [compassionate release approvals have been] by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.”).
  20. .  Carrie Johnson, Seriously Ill Federal Prisoners Freed as Compassionate Release Law Takes Effect, NPR News (Mar. 15, 2019), [].
  21. . United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 U.S. Dist. LEXIS 70802, at *10–11 (D. Conn. Apr. 22, 2020) (granting relief despite prisoner’s failure to exhaust administrative requirements within the BOP because “the Court finds it has the discretion to waive the 30-day waiting period where strict enforcement would not serve the Congressional objective of allowing meaningful and prompt judicial review. The immediate case, where each day threatens irreparable harm to a uniquely susceptible defendant, calls for such a waiver.”); United States v. Decator, No. CCB-95-0202, 2020 U.S. Dist. LEXIS 60109 (D. Md. Apr. 6, 2020) (granting release on similar grounds); United States v. Colvin, No. 3:19cr179 (JBA), 2020 U.S. Dist. LEXIS 57962 (D. Conn. Apr. 2, 2020) (excusing failure to exhaust administrative remedies); cf. United States v. Field, No. 18-CR-426 (JPO), 2020 U.S. Dist. LEXIS 68655 (S.D.N.Y. Apr. 20, 2020) (noting that it cannot grant release outright due to failure to exhaust administrative remedies, but urging BOP to release prisoner outright because his preexisting conditions, including obesity, made him high-risk for COVID-19).
  22. .  See infra Section II.B.
  23. .  See infra Section II.A.
  24. .  See id.
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