This analysis was made possible thanks to the generous support of the UCLA Luskin Institute on Inequality and Democracy.

In May of this year, the U.S. Sentencing Commission released its latest data report, revealing disturbing trends in federal courts’ responses to compassionate release motions filed in fiscal years 2019 and 2020, as well as equally troubling explanations for those trends.

The report found that from October 2019 through September 2021, the overall grant rate by federal courts was just 17%. Of the 22,520 people in federal prison who saw their compassionate release motions adjudicated during this period, just 3,867 (17%) were granted release. 18,000 people whose motions were denied were forced to remain behind bars during a historic, deadly pandemic. Others likely saw their motions go undecided during that same window of time.

According to the report, courts cited procedural obstacles – specifically a failure to exhaust administrative remedies – in nearly a third of denials in fiscal year 2020. For more than half of those denials, according to the report, that ostensible failure to clear a procedural hurdle was the only reason cited for denial. The administrative remedy process is complex and any misstep in the process - like filing a day early or submitting an incorrect form - can lead to the court dismissing a person’s motion. Especially during a public health emergency, when each day behind bars presents a significant risk of contracting a deadly illness, compliance with each step of a highly technical administrative process should not stand between a vulnerable individual and their safety.

During those same 12 months, courts cited a petitioner’s failure to demonstrate an “extraordinary and compelling” reason for relief in more than two-thirds of the total rejections. In a majority (61.3%) of the total rejections, courts found that an individual did not sufficiently prove that they were at risk of contracting COVID behind bars.

These judicial findings overlooked ample evidence that outbreaks have been rapid and widespread inside federal prisons. More than 300 incarcerated people have died of COVID in Federal Bureau of Prison (BOP) facilities across the country, including at least 21 this year alone. More than 55,000 have been infected – the true tally is likely significantly higher, but because of the agency’s poor reporting practices, we can’t be sure by just how much. Our own analysis found that outbreaks have occurred in BOP facilities frequently and suddenly and have been extremely quick to grow.

An additional NPR analysis of outbreaks in federal prisons found that in 2020, “the [age-adjusted] death rate in [Federal Bureau of Prison] prisons [facilities] … was 50% higher than [in] the five years before the pandemic.” In 2021, it found, the death rate was 20% greater than in the pre-pandemic years.

“Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus,” NPR noted.

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The latest Sentencing Commission report came just two months after the release of another data report by the federal body, which took a more granular look at the use of compassionate release in federal courts during fiscal year 2020 (October 2019 - September 2020). 

That report revealed that without a change in law made by the First Step Act just a year before the pandemic, even fewer people would have received compassionate release. Before 2019, people incarcerated in federal prisons could seek compassionate release only from the BOP, and the agency’s decision was final. Among other changes, however, the First Step Act allowed incarcerated individuals to seek relief directly from a federal judge if the BOP denies or ignores their request. This change turned out to be particularly critical – as reported by The Marshall Project, the BOP denied or ignored more than 98% of compassionate release petitions in the early months of the pandemic.

The March Sentencing Commission report found that, of individuals who were granted relief in fiscal year 2020, 96% had to file a motion for release after being rejected or ignored by the BOP. In those judicial proceedings, the BOP continued to oppose the petitioner’s motion in court, drawing out the litigation and slowing down the emergency release process, at least 55% of the time.

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As case numbers are rising with the circulation of the BA.5 variant, compassionate release remains urgent. Last month, Attorney General Merrick Garland announced the appointment of a new Director of the Federal Bureau of Prisons, Colette S. Peters. This new appointment marks an opportunity for the agency to reconsider its broad opposition to compassionate release.

The BOP should endorse more compassionate release applications, and do so quickly after they are filed. If the agency continues to fail to act in this fashion, courts must intervene.