Compassionate Release & the First Step Act: How the 2018 Law Changed Eligibility

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

How Did the First Step Act Change Compassionate Release?

Section 603(b) of the First Step Act, signed December 21, 2018, let a federal prisoner file a compassionate release motion directly in the sentencing court after asking the warden and waiting 30 days. It did not change who qualifies. The “extraordinary and compelling reasons” test is the same one Congress wrote in 1984.

Key takeaways on the First Step Act’s effect

• The Act changed the filer, not the standard. The Supreme Court put it plainly in 2026: the First Step Act “left the ‘extraordinary and compelling’ standard untouched” and “opened a new procedural route for seeking a reduction” (Rutherford v. United States, slip op. at 4). Any page telling you the 2018 law made more people eligible is describing something the statute never did.
• The change was one inserted clause. Section 603(b)(1) added to 18 U.S.C. § 3582(c)(1)(A), right after the words “Bureau of Prisons,” the phrase “or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier” (Pub. L. 115-391, § 603(b), 132 Stat. 5239).
• The result was a near-total reversal of who brings these cases. Of the 394 motions granted in fiscal year 2025, 369 (93.7%) were filed by the defendant and 16 (4.1%) by the BOP Director (USSC FY2025 Compassionate Release Data Report, Table 5). Across FY2020–FY2022 the figure was 4,318 of 4,491 grants with an identified filer, or 96.1% (FY2020–FY2022 Report, Table 5).
• You still have to go to the Bureau first. The court cannot act until the person has fully exhausted BOP administrative appeals or 30 days have run from the warden’s receipt of the request, whichever comes first (§ 3582(c)(1)(A)). Failure to exhaust was cited 447 times as a reason for denial in FY2025 (FY2025 Report, Table 11).
• The same section created enforceable duties toward dying prisoners. Section 603(b)(3) added 18 U.S.C. § 3582(d): 72 hours to notify the attorney, partner, and family after a terminal diagnosis; 7 days to arrange an in-person visit; staff assistance on request; and 14 days to process the resulting request.
• Two Supreme Court decisions on May 28, 2026 narrowed what the new route can be used for. A sentence made longer by a law Congress later changed but did not make retroactive is no longer a qualifying reason (Rutherford), and a claim that the conviction itself was wrong belongs in a § 2255 motion (Fernandez v. United States).

Compassionate Release Before vs. After the First Step Act

The table below is the whole change on one screen. Every value in it comes from the statute, the Bureau’s own regulations, or a federal report, and each is sourced in the sections that follow.

Period	Who could file	Did the BOP hold exclusive gatekeeping?	Required administrative steps	Waiting period / exhaustion rule	Where the motion is filed
Before Dec. 21, 2018	Only the Director of the Bureau of Prisons. A prisoner could ask; only the Director could move a court.	Yes. If the Director declined or never answered, no court could act. There was no route around the refusal.	Written request to the warden, then review by the Warden, the Office of General Counsel, the Medical Director or the Assistant Director for Correctional Programs, the U.S. Attorney for the sentencing district, and the Director.	None that reached a court. The only deadline anywhere in the chain was the Director’s 20 workdays to give written notice after the referral reached him. Nothing bound the warden or General Counsel.	In the sentencing court, but only through the U.S. Attorney acting at the Director’s request. The prisoner had no filing right at all.
On and after Dec. 21, 2018	The Director of the Bureau of Prisons or the defendant, personally or through counsel.	No. The Bureau screens first but no longer decides. A refusal — or 30 days of silence — now opens the courthouse door instead of closing it.	One: a written request to the warden asking the Bureau to move on the person’s behalf, stating the circumstances relied on and a proposed release plan (residence, financial support, and for health-based requests, where treatment will be given and how it will be paid for).	Full exhaustion of BOP administrative appeals or 30 days from the warden’s receipt of the request, whichever is earlier.	In the federal district court that imposed the sentence, filed by the defendant or defense counsel.

Authority for each column, in order: 18 U.S.C. § 3582(c)(1)(A) for who may file and for the exhaustion rule; 28 C.F.R. § 571.62(a) for the internal review chain and the U.S. Attorney’s role; 28 C.F.R. § 571.61(a) for what the request must contain; 28 C.F.R. § 571.63(c) for the Director’s 20-workday notice; and Pub. L. 115-391, § 603(b) for the amendment itself. For the mechanics of the warden request and the BP-9/BP-10/BP-11 appeal sequence, our dedicated page on the compassionate release request to warden is the fuller treatment.

What Section 603(b) of the First Step Act Actually Says

Section 603(b) is titled “Increasing the Use and Transparency of Compassionate Release,” and it does three things to 18 U.S.C. § 3582. The whole provision fits on two pages of the Statutes at Large, at 132 Stat. 5239.

First, it inserted the defendant-filing clause. Paragraph (1) directs that in § 3582(c)(1)(A), “in the matter preceding clause (i), by inserting after ‘Bureau of Prisons,’ the following: ‘or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier,’.” That is the entire substance of the reform. Before the insertion, the statute permitted a reduction only “upon motion of the Director of the Bureau of Prisons.” After it, the same sentence carries two possible movants.

Second, it re-lettered the old subsection (d) as (e) to make room for the new one.

Third, it added § 3582(d), “Notification Requirements” — a set of obligations the Bureau owes to people who are dying and to their families. Those are set out in detail below.

Two features of the drafting matter to anyone using the statute. The clause is written in the disjunctive: full administrative exhaustion or 30 days from the warden’s receipt, “whichever is earlier.” A person does not have to run the BP-9/BP-10/BP-11 administrative remedy chain to the end if 30 days will arrive sooner, and in practice 30 days almost always arrives sooner. And the clause was inserted into the procedural opening of the sentence. It did not touch clause (i) — “extraordinary and compelling reasons warrant such a reduction” — or clause (ii), the separate route for a defendant who is at least 70 years old and has served 30 years on a sentence imposed under the federal three-strikes provision, 18 U.S.C. § 3559(c).

The Supreme Court has since relied on the heading of this very provision. In Fernandez v. United States, slip op. at 11, the Court wrote that “[t]he name for § 3582(c)(1)(A) — ‘Compassionate Release’ — highlights its focus on granting mercy rather than righting legal wrongs,” citing “First Step Act of 2018, § 603(b), 132 Stat. 5239 (heading).” The phrase “compassionate release” appears nowhere in the 1984 statute; it entered federal law through this section heading. For a broader orientation to the whole 2018 law, see the First Step Act and what is the first step act.

What Compassionate Release Looked Like Before December 21, 2018

For more than thirty years the answer to “can we ask the judge?” was no. The Sentencing Reform Act of 1984 gave the sentencing court power to reduce a sentence for extraordinary and compelling reasons, but only on a motion by the Director of the Bureau of Prisons. The Sentencing Commission’s own account of that era, published with Amendment 814, is blunt: “For more than 30 years, reductions pursuant to section 3582(c)(1)(A) could be granted only upon the motion of the BOP. BOP filed such motions extremely rarely — the number of defendants receiving relief averaged two dozen per year — and for the most part limited its motions to cases involving inmates who were expected to die within a year or were profoundly and irremediably incapacitated.”

The Commission was citing the Justice Department’s own Inspector General. The OIG’s April 2013 review of the program, I-2013-006, found at 1 that “on average, only 24 inmates are released each year through the BOP’s compassionate release program” — out of a population the report puts at roughly 218,000 people. The OIG also found the program “poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.” It reported that the Bureau “does not track the time it takes to approve or deny requests,” “has not established a formal method for initiating the review process,” and “has failed to put in place timeliness standards for any stage of the review process.” And it counted the cost: of 211 requests wardens and regional directors forwarded to Central Office between 2006 and 2011, the Director approved 142 and denied 38, and in 28 cases — 13 percent — the person died while the request sat with Central Office.

That is the machine § 603(b) was written against. The review chain in 28 C.F.R. § 571.62(a) runs Warden, then the Office of General Counsel, then the Medical Director for medical referrals or the Assistant Director for Correctional Programs for non-medical ones, then the Director — with the General Counsel required along the way to “solicit the opinion of the United States Attorney in the district in which the inmate was sentenced,” and the Director’s decision “subject to the general supervision and direction of the Attorney General and Deputy Attorney General.” No regulation set a deadline for the warden or for General Counsel. The one clock in the entire process was § 571.63(c): after a referral reaches the Director, he has 20 workdays to give written notice of a denial. A request that never left the institution never started that clock.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The word people miss when they read the pre-2018 history is forwarded. The OIG’s 142 approvals were counted from the 211 requests that made it out of the institution to Central Office — not from the thousands that were filed. Most requests died at the warden’s desk with no written decision and no appeal anyone could take. That structure is why the First Step Act’s 30-day clock matters more than any other number in this statute. It converts an institution’s silence, which used to be the end of the case, into the event that lets you file. Today, when the warden does not answer, we count 31 days from the date of receipt and go to court. Documenting the date of receipt — the stamped copy, the electronic message with a timestamp, the counselor’s signature — is the single most consequential piece of paperwork in a compassionate release file.

What the First Step Act Did Not Change

The First Step Act did not lower the bar. This is the most consequential misunderstanding on the internet about this topic, and the Supreme Court corrected it in 2026: “While it left the ‘extraordinary and compelling’ standard untouched, it opened a new procedural route for seeking a reduction” (Rutherford, slip op. at 4).

Four things stayed exactly where they were.

The statutory test. Clause (i) still requires that “extraordinary and compelling reasons warrant such a reduction.” The Court has since defined those words strictly, taking them from Webster’s Third: “extraordinary” means “most unusual,” “far from common,” “having little or no precedent”; “compelling” means “tending to convince or convert by or as if by forcefulness of evidence” (Fernandez, slip op. at 10).

The sentencing factors. A court may reduce a sentence only “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” That step survived untouched, and it is where most motions actually fail: the § 3553(a) factors were cited 1,260 times as a reason for denial in FY2025, nearly a quarter of all denial reasons given (FY2025 Report, Table 11). How individual judges weigh them is its own subject — see what do judges consider when sentencing.

The bar on rehabilitation alone. 28 U.S.C. § 994(t) still provides that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” The First Step Act left it in place.

The word “may.” Section 3582(c)(1)(A) says a court “may reduce the term of imprisonment.” It has never said “shall.” Clearing every requirement earns a decision, not a result.

What the Act did change, besides who files, is the Bureau’s leverage. Before 2018 the Director’s refusal was the last word. After 2018 the Director’s refusal is a fact the district judge reads about in a brief.

The Terminal-Illness Duties § 603(b) Put on the Bureau of Prisons

The second half of § 603(b) is the half almost no one writes about, and it is the half a family can act on the week of a diagnosis. It added 18 U.S.C. § 3582(d), which defines “terminal illness” as “a disease or condition with an end-of-life trajectory” — no prognosis in months, no specific life expectancy — and then imposes hard deadlines. Those are among the few deadlines in the process that bind anyone but the movant — see how long does compassionate release take.

When a person in federal custody is diagnosed with a terminal illness, § 3582(d)(2)(A) requires the Bureau to:

1. Within 72 hours of the diagnosis, notify the defendant’s attorney, partner, and family members of the condition, and tell them they may prepare and submit a sentence-reduction request on the person’s behalf.
2. Within 7 days of the diagnosis, give the partner and family members — “including extended family” — an opportunity to visit in person.
3. On request from the defendant, the attorney, the partner, or a family member, ensure that Bureau employees assist in “the preparation, drafting, and submission” of the request.
4. Within 14 days of receiving a request submitted on the person’s behalf, process it.

When a person is physically or mentally unable to submit a request, § 3582(d)(2)(B) requires the Bureau to inform the attorney, partner, and family that they may submit on the person’s behalf; to accept and process what they submit; and to provide staff assistance on request. This provision matters in exactly the cases where it is hardest to act — advanced dementia, a stroke, a person on a ventilator — and it means a family is not locked out because the prisoner cannot write.

Section 3582(d)(2)(C) requires every BOP facility to “regularly and visibly post,” including in prisoner handbooks, staff training materials, law libraries, and medical and hospice units, notice of three things: the right to request a sentence reduction, the procedures and timelines for resolving such requests, and the right to appeal a denial after administrative remedies are exhausted.

Section 3582(d)(3) requires the Director to report to the House and Senate Judiciary Committees every year, in eleven categories, on requests for sentence reductions. Read those categories against the 2013 Inspector General findings and the drafting becomes legible. Subsection (G) requires the Bureau to report, “for each request, the time elapsed between the date the request was received by the warden and the final decision” — the exact figure the OIG said the Bureau did not track. Subsection (H) requires it to report “the number of prisoners who died while their request was pending,” and for each, how much time had elapsed since the Bureau received it — the exact harm the OIG had counted at 28 people over six years. Subsections (C) and (D) require counts of requests that staff helped draft and that attorneys, partners, or family members submitted; (K) requires the number of motions defendants filed in court after exhausting administrative appeals, the outcome of each, and the time elapsed.

The Supreme Court read these duties as evidence of what the statute is for. Rutherford points to them in explaining that the Act’s “heightened procedural requirements are similarly tied to personal circumstances: The Bureau must provide extra assistance to a movant diagnosed with a terminal illness or who is physically or mentally unable to submit a request on his own” (slip op. at 10).

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: In the field, § 3582(d) is a checklist, not a theory. When we learn a client has received a terminal diagnosis, the first questions are: what date was the diagnosis entered in Health Services, was anyone in the family notified within 72 hours, was a visit offered within seven days, and did anyone at the institution offer to help draft the request. If the answer to any of those is no, that becomes part of the record — first in a written request to the warden that cites the subsection by number, and then in the motion itself. It changes the tenor of the filing. A judge reading that the Bureau missed a statutory 72-hour notice and then took months on a 14-day request is reading something different from a judge reading a medical summary alone. The Bureau’s own regulation reinforces it: 28 C.F.R. § 571.62(c) directs that where the basis of the request is the inmate’s medical condition, “staff shall expedite the request at all levels.”

Why the Guidelines Took Five Years to Catch Up

Congress changed the statute in December 2018. The Sentencing Commission — the agency Congress charged in 28 U.S.C. § 994(t) with describing “what should be considered extraordinary and compelling reasons for sentence reduction” — could not respond, because it did not have enough confirmed members to vote.

The Commission has said so itself. From the official Reason for Amendment published with Amendment 814: “In 2018, the First Step Act put an end to BOP’s gatekeeping function and allowed individuals to file motions for sentence reductions under the statute. Because the Commission lost its quorum in early 2019 and did not regain it until 2022, it was unable to amend § 1B1.13 during the more than four-year period since defendants were first permitted to file such motions.” The Supreme Court states the same fact: “The Commission lost a quorum shortly after the Act went into effect and did not update its policy statement to address these changes” (Rutherford, slip op. at 4). A “quorum” is the minimum number of voting commissioners needed to act; without it the Commission can publish research but cannot amend a guideline.

The consequence was a policy statement frozen in the pre-2018 world. USSG § 1B1.13 then began with the words “Upon motion of the Director of the Bureau of Prisons,” and its commentary placed the “Other Reasons” catch-all in the hands of the Director. Neither could sensibly be applied to a motion the Director had refused to file.

Amendment 814 fixed it, effective November 1, 2023. The amendment struck “Bureau of Prisons under” from § 1B1.13(a) and inserted “Bureau of Prisons or the defendant pursuant to,” so the policy statement now opens: “Upon motion of the Director of the Bureau of Prisons or the defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment…” (2025 Guidelines Manual). In the Commission’s own summary, the amendment “extends the applicability of the policy statement to defendant-filed motions; expands the list of specified extraordinary and compelling reasons; retains the existing ‘other reasons’ catchall; provides specific guidance with regard to the permissible consideration of changes in the law; and responds to case law that developed after the enactment of the First Step Act.”

One more piece of the 2023 rewrite belongs on this page, because it directly answers a pre-2018 regulation still on the books. USSG § 1B1.13(e), captioned “Foreseeability of Extraordinary and Compelling Reasons,” provides that “an extraordinary and compelling reason need not have been unforeseen at the time of sentencing,” and that “the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction.” Compare 28 C.F.R. § 571.61(a), which still tells prisoners they may request consideration “only when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” That regulation was last amended in 2013 and was never conformed to the 2018 statute or the 2023 guideline. If a staff member tells a family that a known condition cannot support a request, that is the Bureau’s old regulation talking, and it is not the standard a court applies. The Bureau’s operating policy was finally rewritten on September 3, 2026, but the new BOP Program Statement 5050.51, which replaced PS 5050.50 (Jan. 17, 2019), reprints the same “could not reasonably have been foreseen” language in its section 3.

The Circuit Split the Gap Created — and How It Ended in 2026

While the Commission sat without a quorum, the courts of appeals had to decide two questions on their own. Both are now resolved, and both resolutions cut against the more generous reading. How the Court resolved it, and what it left open, is covered on our page on rutherford v united states.

Question one: did § 1B1.13 bind defendant-filed motions?

Most circuits said no. The Supreme Court’s own summary: “Most Circuits held that the existing statement — which mentioned only motions filed by the Bureau — did not apply to motions filed by prisoners,” citing United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021) (collecting cases), “but see United States v. Bryant, 996 F.3d 1243, 1247–1248 (CA11 2021) (applying the policy statement)” (Rutherford, slip op. at 4–5). The provision at the center of that split is covered on our page on the unusually long sentence ground.

The two decisions most often quoted are United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), which held that “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them,” and that “[n]either Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion”; and United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020), which reasoned that “[s]ection 1B1.13 addresses motions and determinations of the Director, not motions by prisoners,” so “the Guidelines Manual lacks an ‘applicable’ policy statement covering prisoner-initiated applications for compassionate release.”

Both are superseded on that point. Amendment 814 supplied the applicable policy statement on November 1, 2023, and Rutherford treats § 1B1.13 as governing — the Court’s holding is framed as a limit on the Commission’s authority to write the guideline, which presupposes the guideline applies. Gunn itself anticipated this, closing with the hope that the Commission’s ability to revise its guidelines “will be restored by the appointment of additional members.” It was. Anyone still citing Brooker or Gunn for the proposition that no policy statement constrains a defendant-filed motion is citing history.

Question two: could the First Step Act’s own nonretroactive changes be an extraordinary and compelling reason?

The Act reduced the mandatory minimums that had produced “stacked” sentences under 18 U.S.C. § 924(c), but did not make the change retroactive. Prisoners serving the old sentences argued that the gap between their sentence and today’s sentence was itself extraordinary and compelling. The circuits divided, and the Supreme Court cataloged both sides in Rutherford’s footnotes 1 and 2.

Against, holding a nonretroactive amendment cannot serve as an extraordinary and compelling reason: Andrews (3d Cir. 2021), United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), and United States v. Crandall, 25 F.4th 582 (8th Cir. 2022), among others.

For, holding such a disparity can be considered at least in combination with other factors: United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022), United States v. Chen, 48 F.4th 1092 (9th Cir. 2022), and United States v. McGee, 992 F.3d 1035 (10th Cir. 2021).

The Commission sided with the minority in 2023, adding § 1B1.13(b)(6), “Unusually Long Sentence,” which allowed a change in the law to be considered where the defendant had served at least 10 years and the change produced a gross disparity.

On May 28, 2026 the Supreme Court ended the split against the permissive side. In Rutherford v. United States, decided with Carter v. United States, the Court held: “The statutory text and structure make clear that Congress’s nonretroactive change to § 924(c) — considered by itself or in combination with other factors — cannot make a prisoner eligible for compassionate release. To the extent that it counsels otherwise, the Commission’s policy statement is invalid” (slip op. at 16). Justice Barrett wrote for the Court, joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanaugh; Justice Sotomayor dissented, joined by Justices Kagan and Jackson.

Three details are easy to get wrong and worth stating precisely.

• The holding is disjunctive. “By itself or in combination with other factors” forecloses the common workaround of pairing a sentencing-disparity argument with a modest medical or family claim and calling the combination extraordinary.
• § 1B1.13(b)(6) is invalid only to that extent, and it is still printed in the Guidelines Manual. The Commission has not amended it. The only § 1B1.13 change taking effect November 1, 2026 is a renaming of the Bureau of Prisons in subsections (a) and (b)(4) (official text of the amendments submitted to Congress, May 2026). A reader who looks up the guideline will find text the Supreme Court has held invalid in significant part, with nothing on the page to say so.
• The Court reserved more than commentators noticed. “We need not decide whether there are reasons beyond personal circumstances that could qualify as ‘extraordinary and compelling'” (slip op. at 10–11), and “[w]e need not nail down the precise boundaries of the phrase” (slip op. at 16). Personal circumstances are the heartland. They are not a closed list. Rutherford footnote 3 also states that the 2023 amendment’s victim-of-abuse ground “is not at issue in today’s cases,” leaving § 1B1.13(b)(4) untouched — see victims of sexual abuse lawyer.

The same day, Fernandez v. United States closed a second route. A prisoner who attacks the validity of his conviction “must proceed through 28 U.S.C. § 2255, not 18 U.S.C. § 3582.” The line the Court drew is between what happened at trial and what is happening now: “When a prisoner moves for compassionate release based on a terminal illness, his motion does not suggest that his conviction is invalid. But if a prisoner moves for relief because of alleged problems with the underlying criminal investigation or trial, his motion suggests that his conviction is flawed” (slip op. at 14–15). Innocence claims, suppressed evidence, and ineffective assistance belong in a § 2255 motion, which carries a one-year deadline that § 3582 does not — see post-conviction deadlines.

The lower courts have read Rutherford broadly, not narrowly. In United States v. Hall, No. 24-6094 (6th Cir. June 25, 2026), a published decision reversing a grant, the Sixth Circuit held that Rutherford’s logic is not confined to § 1B1.13(b)(6) and that the “other reasons” catch-all at (b)(5) cannot be used to override a limit the statute imposes. In United States v. Chineag, No. 25-10557 (11th Cir. July 2, 2026) (not for publication), the Eleventh Circuit applied Rutherford to a nonretroactive Controlled Substances Act change rather than a § 924(c) change. In United States v. Loggins, Nos. 24-1488 and 24-1569 (8th Cir. July 10, 2026), the Eighth Circuit read Rutherford as confirming its own prior rule.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The honest way to describe the arc is that the First Step Act opened the courthouse and the Supreme Court then narrowed what you can carry through the door. For nearly five years — first while the Commission had no quorum, then until its 2023 amendment took effect — the most common winning theory in this area was about the sentence — that it was longer than the law would allow today. After May 28, 2026 that theory is closed where the change was not made retroactive, and the test we apply to our own drafts is simple: strike every sentencing-law argument out of the motion and see whether what remains would still get a client past the eligibility gate. If it would not, the motion is not ready, and the client may need a different vehicle — often a § 2255 motion or a federal clemency petition. What the decision does not do is make a long sentence irrelevant. Once eligibility is established on other grounds, § 1B1.13(c) still lets a change in the law inform how much of a reduction is warranted. That argument belongs at the second step, not the first, and Rutherford’s two express reservations were written deliberately.

Who Can Seek Compassionate Release After the First Step Act

Eligibility today has four parts, and the First Step Act altered only the first. Who may file: the Director of the Bureau of Prisons or the defendant, in the district court that imposed the sentence (§ 3582(c)(1)(A)). The threshold step: exhaustion or the 30-day lapse. A qualifying reason: one of the six categories in USSG § 1B1.13(b), which the policy statement permits to be established “under any of the following circumstances or a combination thereof.” Two discretionary findings: that the person is not a danger to the safety of any other person or the community as measured by 18 U.S.C. § 3142(g), and that the § 3553(a) factors support the reduced sentence.

The six categories, in outline: medical circumstances under § 1B1.13(b)(1), covering terminal illness, a serious condition or impairment that substantially diminishes the ability to provide self-care in a correctional facility, a condition requiring long-term or specialized care that is not being provided, and an infectious-disease outbreak or declared public health emergency; age under (b)(2), requiring 65 or older, serious deterioration from aging, and at least 10 years or 75% of the sentence served, whichever is less; family circumstances under (b)(3), covering the death or incapacitation of a minor or disabled adult child’s caregiver, an incapacitated spouse or registered partner, an incapacitated parent, and other immediate family members; abuse in custody under (b)(4); other reasons similar in gravity under (b)(5); and unusually long sentence under (b)(6), now invalid to the extent discussed above.

Each of those grounds has its own proof problems, and each has its own page. Medical claims turn on function rather than diagnosis — see compassionate release for federal inmates. Age-based claims must satisfy all three elements of (b)(2), not just the birthday — see compassionate release 65 years old. Caregiver claims live or die on proving that no one else is available — see caregiver compassionate release. And because grant rates vary enormously by district, where the case was prosecuted matters — see compassionate release eligibility for what that looks like in one of the harder circuits. For the complete framework, the parent page is our federal compassionate release attorney hub, and the plain-language version for families is what is a compassionate release.

Do You Still Have to Ask the Bureau First?

Yes, and this is the part of the First Step Act people misread most often. The Act did not eliminate the Bureau of Prisons from the process; it demoted the Bureau from decider to first stop. Section 3582(c)(1)(A) permits a defendant-filed motion only after “the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”

“Exhaustion” means using up the agency’s own complaint process before going to court. Here there are two independent routes and you take whichever finishes first — which, in practice, is the 30-day lapse. 28 C.F.R. § 571.61(a) sets what the request must contain: the extraordinary or compelling circumstances relied on, and proposed release plans covering where the person will live, how they will support themselves, and, for a health-based request, where treatment will be received and how it will be paid for. Section 571.61(b) provides that the Bureau processes a request made by another person on the inmate’s behalf “in the same manner” as the inmate’s own.

Courts have uniformly held the requirement is not jurisdictional — meaning it does not deprive a court of power — but is a mandatory claim-processing rule the government can insist on: United States v. Alam, 960 F.3d 831 (6th Cir. 2020); United States v. Franco, 973 F.3d 465 (5th Cir. 2020). The Eighth Circuit recognizes no futility exception: United States v. Houck, 2 F.4th 1082 (8th Cir. 2021). One question remains open — whether the grounds raised with the warden must match the grounds raised in court. The Seventh Circuit says yes (United States v. Williams, 987 F.3d 700 (7th Cir. 2021)); the Fourth Circuit says no (United States v. Ferguson, 55 F.4th 262 (4th Cir. 2022)). Until that is settled, put every ground in the warden request.

The full mechanics — how to write the request, how the Bureau routes it, what a warden’s denial opens up under 28 C.F.R. § 571.63, and how the administrative remedy deadlines in 28 C.F.R. § 542.15 interact with the 30-day clock — belong on our dedicated page: compassionate release request to warden.

What Actually Happened After 2018: the Numbers

The First Step Act’s effect on who files was close to total. Its effect on how often courts grant has settled into a narrow band.

Who files the motions that get granted. In FY2025, of 394 grants: defendant 369 (93.7%), BOP Director 16 (4.1%), joint 9 (2.3%), government 0. In the first two quarters of FY2026, of 125 grants: defendant 123 (98.4%), Director 1, government 1. Across FY2020–FY2022 combined, defendants filed 4,318 of the 4,491 granted motions whose filer could be identified (96.1%) and the Director filed 45 (1.0%); Table 5 leaves out 11 of the 4,502 grants for that reason. All figures from Table 5 of the FY2025, FY2026 Q1–Q2, and FY2020–FY2022 Compassionate Release Data Reports.

Set that against the pre-2018 baseline of roughly 24 releases a year and the scale of § 603(b) is clear: the provision did not persuade the Bureau to file more motions. It routed around the Bureau.

How often courts grant.

Fiscal year	Motions decided	Granted	Grant rate
FY2020–FY2022 (combined, as published)	27,789	4,502	16.2%
FY2023	3,140	432	13.8%
FY2024	3,015	481	16.0%
FY2025	2,795	394	14.1%
FY2026, first two quarters	894	125	14.0%

Source: U.S. Sentencing Commission Compassionate Release Data Reports, Tables 2–3 of the FY2023, FY2024, FY2025, and FY2026 Q1–Q2 reports. The FY2020–22 line is the Commission’s published three-year aggregate; it did not publish single-year totals for those years.

The story in that table is volume, not rate. The pandemic years produced tens of thousands of motions, and the reason courts were giving has almost entirely disappeared: COVID-19 was cited as a ground for granting relief 1,304 times in FY2020 (FY2020–FY2022 Report, Table 10) and 3 times in FY2025 (FY2025 Report, Table 10).

One caution about using this data to predict anything today. Among the 631 reasons courts gave for the 394 FY2025 grants, § 1B1.13(b)(6) accounted for 80 citations and multiple § 924(c) penalties for 45 (FY2025 Report, Table 10). Those grants rest on a reading of the statute the Supreme Court rejected in May 2026. Any assessment of the odds built on FY2024 or FY2025 numbers overstates what is available now, because roughly a fifth of the reasons courts were giving are no longer available reasons.

The First Step Act’s Other Early-Release Machinery — and Why It Is Not This

The First Step Act contains several other early-release mechanisms. They are routinely confused with compassionate release, including by facility staff. They run on different statutes, they are administered by the Bureau of Prisons rather than a court, and — this is the key distinction — none of them changes the sentence. Compassionate release changes the sentence itself.

Earned time credits, 18 U.S.C. § 3632(d)(4). A prisoner who successfully completes evidence-based recidivism reduction programming or productive activities earns 10 days of time credits for every 30 days of successful participation, and a prisoner assessed at minimum or low risk who has not increased that risk over two consecutive assessments earns an additional 5 days per 30. The credits are applied toward time in prerelease custody or supervised release, not toward the sentence. Section 3632(d)(4)(D) lists a long schedule of disqualifying convictions. Because the credits move a release date rather than shorten a term, someone who is terminally ill and years from the door gets nothing from them. See First Step Act time credits.

The PATTERN risk assessment. Section 3632(a) directs the Attorney General to develop a risk and needs assessment system; the Bureau implements it through PATTERN — “the Prisoner Assessment Tool Targeting Estimated Risk and Needs,” currently at version 1.3. A PATTERN score governs earned-time-credit eligibility and placement decisions. It has no role at all in a § 3582(c)(1)(A) motion. The court’s dangerousness inquiry runs on 18 U.S.C. § 3142(g) by way of USSG § 1B1.13(a)(2), not on a Bureau risk score — though a favorable score is worth putting in the record.

Expanded home confinement, 18 U.S.C. § 3624(c). Section 602 of the First Step Act added a sentence to § 3624(c)(2) directing that the Bureau “shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.” The underlying limit did not change: home confinement is available for the shorter of 10 percent of the term or 6 months, within the up-to-12-months prerelease window. This is a placement decision by the Bureau about where the term is served. See home confinement.

The elderly and terminally ill offender home detention pilot, 34 U.S.C. § 60541(g). Section 603(a) of the First Step Act — the subsection immediately preceding the compassionate release amendment — expanded this Second Chance Act pilot: it lowered the qualifying age from 65 to 60, cut the time-served requirement from 75 percent to two-thirds of the sentence, added a category of “eligible terminally ill offender,” and allowed an offender to make the written request rather than waiting for the Bureau. It also carries real limits: the pilot excludes anyone serving a life sentence or a sentence for a crime of violence, a sex offense, a terrorism offense, or an offense under chapter 37, and § 60541(g)(3) provides that the program “shall be carried out during fiscal years 2019 through 2023.” Placement is home detention administered by the Bureau; the sentence is untouched.

RDAP early release, 18 U.S.C. § 3621(e). Predates the First Step Act. Up to 12 months off the term for completing the residential drug abuse program, at the Bureau’s discretion, for qualifying offenses. See RDAP.

The practical point for a family: these programs are worth pursuing and they are not substitutes for each other. A person can be building earned time credits and litigating a compassionate release motion at the same time, and the two do not conflict. But a Bureau program cannot help someone whose problem is that they will not survive the sentence. Only a court can shorten the sentence. For how the routes compare side by side, see compassionate release attorneys.

What the Sentencing Court Decides

Because the First Step Act moved these cases into court, it is worth being precise about what the court is actually doing — it is not re-sentencing, and it is not reviewing the Bureau’s decision.

Step one is eligibility, and it is a gate. The court must find that extraordinary and compelling reasons warrant a reduction. That determination does not involve the § 3553(a) factors at all. As Rutherford put it, relying on Dillon v. United States, 560 U.S. 817 (2010): “Before determining the extent of a reduction based on the § 3553(a) factors, a court must first ensure that a movant is part of the ‘limited class of prisoners’ who are ‘eligibl[e]’ for such a reduction.” The Court described this as “a distinct analytical step that imposes independent and ascertainable limits on access to compassionate release” (slip op. at 14).

Step two is discretion. If the gate is cleared, the court weighs the § 3553(a) factors — the nature of the offense, the history and characteristics of the defendant, the need for the sentence to reflect seriousness, afford deterrence, protect the public, and provide treatment. The statute says the court “may” reduce the sentence. A separate finding under USSG § 1B1.13(a)(2) requires that the defendant not be “a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).”

What the court is not doing is reviewing the warden’s denial. That distinction surprises people. The Bureau’s refusal is not the thing on appeal; it is the procedural fact that makes the motion possible. The judge decides the question fresh, on the record the parties build. A denial by a district court is reviewed on appeal for abuse of discretion, and the government may appeal a grant — Hall is a 2026 example of a grant reversed. Options after a loss are covered at compassionate release denial, and the appellate posture generally at federal appeals.

How a Federal Criminal Defense Lawyer Can Help

Most of the work in a post-First Step Act compassionate release motion is not legal argument. It is assembling a record that does not yet exist, from an institution with no obligation to help assemble it, for someone who cannot make phone calls or gather documents.

Concretely, that means: obtaining the complete BOP medical file rather than the summary a family can request; establishing and documenting the date the warden received the request, because that date starts the only enforceable clock in the statute; drafting a warden request that satisfies 28 C.F.R. § 571.61 and preserves every ground for court, given the unresolved issue-exhaustion split; auditing compliance with the § 3582(d) deadlines where a terminal diagnosis is involved; identifying which subsection of § 1B1.13 the documented facts actually support, which is frequently not the one the family assumed; building a release plan concrete enough to answer the danger finding; and briefing § 3553(a) affirmatively rather than defensively, because that is the step that defeats most motions.

It also means saying no when the answer is no. After May 2026, a case whose entire theory is the length of the sentence needs a different vehicle, and the sooner that is said, the less time is lost. Christopher Zoukis leads the firm’s federal prison consulting work — designation, sentence computation, First Step Act credits, RDAP, medical-care advocacy, and reentry planning. The legal work on any compassionate release motion, including the filing, the briefing, and any appeal, is handled by Elizabeth Franklin-Best and the firm’s attorneys.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best is the founder and Principal Attorney of Elizabeth Franklin-Best, P.C., a boutique firm devoted to federal criminal appeals and post-conviction relief. Over more than 20 years she has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has appeared pro hac vice in federal courts from Montana to Florida. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and was named South Carolina Public Defender of the Year in 2010. She is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023) and serves as Board Chair of Justice 360.

Christopher Zoukis, JD, MBA, is the firm’s Managing Director and a nationally recognized federal prison expert. He is the author of the Federal Prison Handbook, Directory of Federal Prisons, Prison Education Guide, and College for Convicts, and serves as Chairman of the Board of the Human Rights Defense Center. He has been quoted as a federal prison expert by outlets including CNN, the Associated Press, and The Washington Post. He earned his J.D. at the University of California, Davis School of Law after serving roughly a decade in the federal Bureau of Prisons, where he became an award-winning incarcerated journalist — a combination of formal training and firsthand knowledge that few in federal defense can offer.

The firm runs a national federal practice on an intentionally small caseload, from offices in Columbia and Mount Pleasant, South Carolina. Because a compassionate release motion is filed in the district that imposed the sentence, these cases are handled wherever in the country that court sits.

Talk to a federal compassionate release lawyer

If someone in your family is seriously ill, aging badly, or the only person who can care for a child, the useful first step is a look at the actual record rather than a general answer about the law.

A case review on compassionate release eligibility starts with five things: the judgment and the sentence imposed, the district and the judge, the current BOP medical file or the diagnosis if the records are not yet in hand, the family’s caregiving situation and who else could step in, and — most time-sensitive of all — whether a written request has gone to the warden and on what date it was received. That date starts the only enforceable clock in 18 U.S.C. § 3582(c)(1)(A), and if no request has been made, that is usually the same-week task.

Call (843) 620-1100 or schedule a consultation directly. Motions are filed in the district that imposed the sentence, anywhere in the country.

Frequently Asked Questions About the First Step Act Changes

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026