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Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission’s policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release.

e. Many have celebrated this newfound discretion and its potential to expand individuals’ ability to receive compassionate release. However, judicial discretion, though valuable in many ways, inevitably leads to disagreement and disparity. Perhaps unsurprisingly, circuit courts have disagreed on whether certain circumstances could, as a matter of law, justify a grant of compassionate release, causing geographic disparity in individuals’ ability to receive compassion. In April 2023, the Commission updated its policy statement and included a catchall provision codifying judicial discretion and, unless the Commission acts, the disparity that discretion invites.

This Comment argues that for judicial discretion to improve compassionate release, the Commission must take an active role in overseeing judicial discretion so that compassionate release can enjoy the benefits of that discretion without accepting the disparity discretion often creates. Specifically, it argues the Commission, through its statutory authority to describe what should be considered an extraordinary and compelling reason, can resolve current and future circuit splits over what constitutes an extraordinary and compelling reason by promulgating amended policy statements expressly including, or excluding, the disputed circumstance in its description of extraordinary and compelling reasons. In doing so, the Commission would effectively erase circuit courts’ contrary interpretations of extraordinary and compelling reasons and thereby end the regional “droughts of compassion” the current approach to judicial discretion allows.

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