From an international human rights perspective, compassionate release ensures the recognition of several rights that may otherwise go unmet within carceral contexts. Many European countries like France, Germany and the UK have compassionate release laws based on Article 5 of the UDHR, which prohibits torture, similar to America’s Eighth Amendment. Though in the U.S. compassionate release is based in statutory law, some have argued for the centrality of the Eighth in its application, making a similar human rights argument as the European nations that incarceration until death or in the absence of adequate treatment constitutes excessive punishment.
Legal scholars have argued that, to remain in accordance with rights such as Articles 3 and 25 of the UDHR, the U.S. must expand compassionate release to allow individuals to receive adequate treatment outside of prisons/jails, rather than suffer inside with inadequate care.
The limits and future avenues of compassionate release
Compassionate release is not without its current limitations. Firstly, it is a slow process, bogged down within federal prisons by an “exhaustion requirement” that forces individuals to complete an administrative appeals process with the BOP before applying for release. In a highly bureaucratic system, this can take months to years, time that people with serious illness may not have.
Further, despite expansions in who can file and what conditions are “extraordinary and compelling,” the number of compassionate release cases granted are still low, with a 13 percent grant rate in 2022. In reviewing cases that are denied, it becomes clear that medical necessity is of secondary concern to penological considerations.
Public safety is often the primary concern of judges in granting release. As a result, most of those granted compassionate release were convicted of non-violent offenses. This remains the case despite growing evidence that the three year recidivism rate among people released since the First Step Act is markedly lower than the general population, at 12 percent as against 45 percent. In the case of mental illness, the invocation of public safety seems more likely, as it is often noted (though not necessarily borne out in the data) that recidivism rates for individuals with serious mental illness (‘SMI’) tend to be higher.
Ultimately, the question of where individuals with SMI can expect to receive proper care outside prisons also looms large. Lacking a universal and affordable health insurance scheme, the US remains a place where mental health care is out of reach for many. As such, judges may block release petitions on the grounds that individuals may not actually receive better care outside of prison. Given all this, it is clear that compassionate release is still a limited tool, more applicable to people with physical than mental illnesses, to people with non-violent cases than violent ones, and slow even for those who it releases.
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