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

Paloma Greenblatt, Marielle

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. 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. 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.” On Zeich’s fourth try, he was granted compassionate release. He died two days before he was set to head home.

Between 2013 and 2017, the Bureau of Prisons received 5,400 requests for compassionate release from people in federal prison but approved just 6% of them, taking an average of 141 days to make a decision. These delays proved deadly: 266 prisoners, nearly 5% of all applicants, died while waiting for the BOP’s answer. In 2013, a Department of Justice (“DOJ”) report found that the BOP lacked basic timeliness standards for reviewing initial compassionate release requests. 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. The DOJ report found that the appellate review process for compassionate release requests could take more than five months to complete.

Given these realities, scholars as well as government watchdog groups have long suggested that compassionate release would benefit from judicial oversight of BOP determinations. 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.

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. 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. 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”; 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. 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. 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. 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.

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. 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. 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.

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.


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May 5, 2022