COVID-19, Compassionate Release, and the Harms of the Criminal Legal System

COVID-19, Compassionate Release, and the Harms of the Criminal Legal System

In first-year Criminal Law classes, law students study the philosophical rationales behind the criminal legal system. Law students learn that the system embraces proportionality and the principles of punishment: deterrence, incapacitation, rehabilitation, retribution, and restitution. Crimes are thought of as the results of individual decisions and punished accordingly. But even the criminal legal system’s so-called objective standards—shaped by mostly White juries, judges, and prosecutors, as well as our historically very White legislature—are undeniably seeded with racist, classist norms.

Regardless of what first-year law students will learn in their Criminal Law classes this fall, never has the system’s single-minded focus on retribution been clearer than it is against the backdrop of the COVID-19 pandemic. Incarcerated people—many of whom have chronic health conditions that are mismanaged by prisons—are stuck in facilities where staff shortages, risky transfers, and overcrowding make COVID-19 a looming threat. To deal with this threat, the Federal Bureau of Prisons (BOP) has released about 7,500 people on home confinement. Hundreds more have sought a compassionate release order from the court, many of which the BOP opposes. Compassionate release allows courts to reintroduce rehabilitation as a guiding principle for individual sentences. It allows resentencing to time served as long as the court cites an extraordinary and compelling reason to grant release (such as the COVID-19 pandemic) and finds that the sentence already served is sufficient to achieve the goals of sentencing. As exciting as every grant is, compassionate release cannot overwhelm or undo the harms of the criminal legal system. If it is a release valve, it is a small one.

The federal criminal system has produced a complex system of mandatory minimums and advisory sentencing guidelines. Mandatory minimums were meant to deter crime and create uniformity in sentencing. Instead, mandatory minimums have contributed to mass incarceration, with the effects concentrated on nonviolent drug offenders. According to the BOP, nearly half of all federal inmates are incarcerated due to drug offenses. Thanks to mandatory minimums and other “reforms,” the prison population has exploded in the last forty years.

This brings us to today, and the COVID-19 pandemic. As anyone who has set foot in a federal prison knows, it is difficult—if not impossible—for people in prison to follow the Centers for Disease Control and Prevention (CDC) recommendations on minimizing the risk of contracting COVID-19, which include avoiding close contact with others, wearing a clean mask, and regularly disinfecting surfaces. Not only are prisons failing to ensure adequate safety measures, COVID-19 has worsened prison conditions in other ways. Lockdowns and solitary confinement have been used as cruel stopgap measures to stem the rise of cases. Symptomatic inmates are sometimes left to fend for themselves, relying on cellmates rather than qualified medical personnel for aid. Information that leaves and enters prisons is always strictly controlled—calls are monitored, mail that is not labeled as legal mail is opened. Not only does this prevent inmates from disclosing uncensored details about the conditions of their confinement, it can chill privileged conversations between attorneys and clients, resulting in less effective representation. Many institutions have suspended in-person visits due to the risks of introducing COVID-19 into the prison population.

In many cases, paltry prevention efforts put in place to slow the spread of COVID-19 were too little, too late. COVID-19 has been introduced in many federal prisons—and once it is in, the results can be catastrophic.

In response to these outbreaks, inmates have turned increasingly to compassionate release. Prior to 2018, compassionate release could only be sought by the BOP on behalf of inmates, and only when certain very specific criteria were met. Because the onus was on prison officials to lobby the courts for relief, compassionate release motions were relatively rare. The First Step Act, passed in 2018, amended the law to allow inmates to file for compassionate release on their own behalf, as long as they have requested compassionate release from their warden and more than thirty days have elapsed. (Because much of the law in this area is new and judge-made, different jurisdictions have different thresholds for when they will consider administrative options to have been exhausted, but this is the bare minimum.)

Compassionate release, which was a powerful tool for an individual inmate before COVID-19, has become even more important in the face of the pandemic. Either pro se or with the assistance of an attorney, an individual can argue that factors such as their underlying health conditions, the severity of the outbreak in their institution, and their behavior while incarcerated merit the judge reconsidering their sentence and releasing them from prison.

At the federal defender office where I have worked this summer, we have seen high demand for assistance on compassionate release motions. As students, we have been taught to treat these motions are as if we were essentially asking for resentencing, wherein an individual asks the court to reduce or modify their original sentence. A motion for compassionate release due to COVID-19 must establish the risk of exposure to the virus and convince the judge that the risk constitutes an extraordinary and compelling reason for release, most often because a client’s underlying health conditions increase the likelihood of a serious or fatal case. In addition, you have to argue what are known as Section 3553 factors, which are outlined in 18 U.S.C. § 3553. Because the Federal Sentencing Guidelines are no longer mandatory, the Guidelines’ range is one factor (among others, including, importantly, “the nature and circumstances of the offense and the history and characteristics of the defendant”) that judges consider when sentencing defendants.

This trend of resentencing qua compassionate release has been spurred in part by organizations like Families Against Mandatory Minimums. Compassionate release motions, which can lay out in great detail why a particular inmate deserves to be given a second chance, offer an opportunity for an individual judge to circumvent harsh mandatory minimums. In this way, compassionate release due to COVID can function as a small check on the structural racism inherent in the policy of mandatory minimums (for drug offenders, for instance, a nonviolent drug offense can lead to decades of mandatory time).

In order for a judge to consider a motion for compassionate release, the inmate must have already requested that the warden of their institution file on their behalf. If the warden fails to respond in thirty days, the inmate can file a motion with the judge that sentenced them. At that point, the decision is within the discretion of the judge. Many compassionate release motions are denied. With COVID-19 spreading within prisons, denying a compassionate release motion can functionally commute someone’s prison term to a death sentence. California Governor Gavin Newsom, upon taking office, proclaimed a moratorium on executions under his tenure. However, not only has Governor Newsom watched as inmates continue to sicken and die, but federal executions in other parts of the country have resumed after a long hiatus, with the condemned unable to see their families or attorneys due to the pandemic restrictions.

Despite a national preoccupation with the promises of our Constitution, we are allowing inmates to die without exercising either their due process rights or our mercy. Pre-pandemic, we took most everything from the people we convict of crimes and let sit in prison for decades on end—we took their youth, their families, and in many instances, their futures. The purposes of punishment we extol from podia in lecture halls were not served. Though many incarcerated people take it upon themselves to earn a degree or learn a craft in prison, our prisons are not designed to rehabilitate or to restore. They are places where the incarcerated are punished while polite society closes their eyes to what is actually happening. Now, there is the added strain of COVID-19, which incarcerated people are several times more likely to catch and die from than the general population.

Compassionate release makes a certain sort of sense in a system that, in significant ways, treats crime as an individual evil rather than a social problem. We punish individual people for their actions and rely on the zealous defense attorney, the fair-minded prosecutor, the wise judge, or the reformed inmate to make sure that justice is done. In reality, structural barriers and harms have much more to do with both the causes and the ramifications of crime than any individual’s actions or choices. The COVID-specific resentencing found under compassionate release offers a unique opportunity for humanizing a defendant. It is important to recognize, however, that humanizing defendants in a dehumanizing system will never solve pervasive structural problems like anti-Black racism, mandatory minimums, society’s refusal to examine prisons, or the global pandemic. Compassionate release can function for some as a necessary and life-saving workaround, but it is not a cure-all.


Ellen Ivens-Duran: Senior Executive Editor for the California Law Review and member of Berkeley Law Class of 2021.

Recommended Citation: Ellen Ivens-Duran, COVID-19, Compassionate Release, and the Harms of the Criminal Legal System, Calif. L. Rev. Online (Aug. 2020),

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