Last week the Supreme Court decided two companion cases (Rutherford v. United States and Fernandez v. United States) largely confining 18 U.S.C. § 3582(c)(1)(A), colloquially known as compassionate release, to its historic core as a remedy grounded on a prisoner’s personal circumstances (such as age or infirmity), and not a vehicle for litigating the legality of a conviction (or sentence) or for capturing sentencing reforms Congress declined to make retroactive. Both opinions were written by Justice Barrett. This post summarizes them and explains what remains of this remedy.

The statute

Section 3582(c)(1)(A) permits a district court to reduce a term of imprisonment if, “after considering the factors set forth in section 3553(a),” it finds “extraordinary and compelling reasons warrant such a reduction” and that the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.” Congress did not define the operative phrase but directed the Commission to “describe what should be considered extraordinary and compelling reasons,” subject to one express limit — rehabilitation “alone” does not qualify. 28 U.S.C. § 994(t). In 2023, the Commission added U.S.S.G. § 1B1.13(b)(6), a policy statement permitting courts in narrow circumstances to treat a nonretroactive change in law as part of the “extraordinary and compelling” analysis.

Rutherford: Nonretroactive changes in law are neither extraordinary nor compelling.

Rutherford and Carter were sentenced under § 924(c)’s pre–First Step Act stacking regime, which required consecutive imprisonment terms for multiple § 924(c) counts in the same indictment. The Act eliminated this rule but was not made retroactive. Each prisoner sought relief based on the resulting disparity, invoking § 1B1.13(b)(6).

Held (6-3): “When Congress declines to make a sentencing amendment retroactive—as with the change to § 924(c)—the resulting sentencing disparity cannot serve as an ‘extraordinary and compelling’ reason that warrants a sentence reduction.” Rutherford slip op. 2. The disparity is neither extraordinary (because “nonretroactive amendments to criminal penalties are the norm,” id. at 9) nor compelling (because crediting it “would undermine Congress’s choice to leave the sentence intact,” id.). The Court held § 1B1.13(b)(6) invalid to the extent it counsels otherwise. Id. at 16.

Fernandez: Challenges to a conviction sounding in habeas cannot be the basis of a § 3582(c) motion.

Fernandez was convicted of murder for hire and sentenced to two consecutive life terms. He challenged the conviction on direct appeal and in two § 2255 motions without success (a second § 2255 vacated a related firearms count under United States v. Davis). He then moved under § 3582(c)(1)(A), arguing, chiefly on a claim of innocence, that extraordinary and compelling reasons warranted release. The district court (the same judge who presided at trial a decade earlier) granted the motion, resting on its “disquiet” about whether the accomplice witness had told the truth and its “doubt that the jury’s verdict was correct,” together with the disparity between Fernandez’s sentence and his codefendants’.

Held (8-1 as to the judgment): “A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. § 2255, not 18 U.S.C. § 3582; the supposed invalidity of a conviction is not among the ‘extraordinary and compelling reasons’ that justify compassionate release.” Fernandez slip op. 1. Otherwise, a prisoner could “challenge the validity of his conviction repeatedly, for years after it became final, even if the issue had already been raised or decided in prior proceedings.” Id. at 9. (Justices Sotomayor and Kagan concurred in the judgment only, on the narrower ground that relief requires a post-sentencing change; Justice Jackson dissented).

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The current scope of § 3582(c)(1)(A)

Read together, the decisions set the boundaries of § 3582(c)(1)(A) as follows:

What can no longer be brought

1. Any challenge to the conviction that sounds in habeas. This is the broad one, and it is the heart of Fernandez. If a claim attacks the validity of the conviction, or otherwise lies “close to the core of habeas corpus,” it must be brought under § 2255, not § 3582: “A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. § 2255, not 18 U.S.C. § 3582; the supposed invalidity of a conviction is not among the ‘extraordinary and compelling reasons’ that justify compassionate release.” Fernandez at 1. The trigger is the nature of the claim, not its label or the relief sought: “[w]hether a prisoner’s request for relief challenges a conviction turns on the nature of the arguments presented,” and a motion premised on “alleged problems with the underlying criminal investigation or trial” suggests “his conviction is flawed.” at 14–15. Thus, innocence, evidentiary sufficiency, Brady, Strickland, suppression, instructional error—any ground that, if accepted, would call the conviction into question—is channeled out of § 3582. Although Fernandez does not expressly address challenges to the legality of a sentence (for example, a non-constitutional challenge to an ACCA sentence that cannot be brought via a successive § 2255), its reasoning likely applies to such claims, which also sound in habeas.

Strikingly, the bar applies regardless of whether § 2255 would actually afford relief: the Court declined to decide whether a freestanding actual-innocence claim is cognizable under § 2255 (“We have never ruled that possibility out and do not do so now”), yet still held that “a compassionate release motion is not a vehicle for raising such a claim,” because the claim “lies ‘close to the core of habeas corpus.'” Fernandez at 16–17. What controls is that the claim is the kind Congress routed through the postconviction statutes: “[a] reason is not ‘compelling’ if Congress has channeled it through the postconviction statutes,” and “[t]hat Congress has chosen to make § 2255 a high bar is not a compelling reason to reduce the sentences of prisoners who fall short.” Id. at 10.

2. A nonretroactive change in sentencing law, alone or combined with other factors, along with any reliance on § 1B1.13(b)(6), is now invalid. Such a change “considered by itself or in combination with other factors—cannot make a prisoner eligible for compassionate release.” Rutherford at 16.
3. A judge’s disagreement with the severity of a mandatory minimum. “Treating the severity of a mandatory penalty as a reason for compassionate release rejects Congress’s judgment that the punishment fits the crime.” Rutherford at 15.

 

What can still be brought

The “heartland” is untouched. “[A]ge, illness, a child left with no guardian,” for instance, remain appropriate grounds for relief. Fernandez at 13

• Serious medical condition (§ 1B1.13(b)(1)); “[r]eleases have been most often applied in cases where the inmate is terminally ill” (Rutherford at 10).
• Age and declining health (§ 1B1.13(b)(2)).
• Family circumstances (§ 1B1.13(b)(3)).
• Abuse in custody (§ 1B1.13(b)(4)), which the Court noted is “not at issue in today’s cases” (Rutherford at 5 n.3).
• Conditions of confinement, including COVID-type medical vulnerability. Neither opinion addresses these; Rutherford himself cited obesity and hypertension that left him “more vulnerable to the COVID-19 virus” (Rutherford at 6), and the Court resolved the case on the change-in-law issue alone, leaving the personal-health theory intact.
• Rehabilitation as a contributing factor; the § 994(t) bar reaches only rehabilitation “alone.”

 

Open question

• Whether anything beyond personal circumstances qualifies. “We need not decide whether there are reasons beyond personal circumstances that could qualify as ‘extraordinary and compelling'” (Rutherford at 10). The Court specifically reserved decision on whether § 3582(c) relief is “available for t[wo] kinds of post-judgment developments” short of a nonretroactive statute (Rutherford at 11 n.6): Setser v. United States, 566 U.S. 231 (2012), where a later state-court sentencing decision makes a federal sentence unexpectedly long (the Court there suggested § 3582 might supply relief); and United States v. Diaco, 457 F. Supp. 371 (D.N.J. 1978), where a court reduced a sentence after codefendants later received markedly lower ones. Note, however, that the Second Circuit’s panel decision in United States v. Fernandez, 104 F.4th 420, 429 (2d Cir. 2024), held that disparity between a defendant’s sentence and those of his co-defendants was not a permissible basis for compassionate release, and the Supreme Court did not grant review on that issue. See Fernandez at 4-5 n.1.