Reimagining Compassionate Release: A Lexicon for Change

Despite recent reforms, the United States (US) continues to operate an overburdened criminal justice system, with an incarcerated population that is steadily growing older and sicker, generating substantial medical and custodial costs. Compassionate release can help alleviate this problem and exists in nearly every US state. These provisions allow for the early release of individuals who are terminally or seriously ill, elderly, or otherwise facing extraordinary and compelling circumstances. Yet, despite providing a targeted mechanism for releasing individuals who are both expensive to incarcerate and who likely pose minimal risk to public safety, compassionate release remains widely regarded as significantly underutilized. Existing scholarship provides valuable insights into compassionate release and, more recently, has expanded in response to the First Step Act and COVID-19. These studies show that eligibility categories have broadened over time, but far less is understood about how these provisions function in practice. The scholarship is divided between narrow, jurisdiction-specific case studies and broad national surveys, with little analysis of the institutional and procedural architecture that determines how compassionate release works in practice. This article addresses that gap. Part I draws on the first comprehensive historical catalogue of every known state and federal compassionate release provision (CRP) to reconstruct the development of compassionate release from the 1960s to the present, identifying four eras that correspond to broader trends in American penal policy. Part II then identifies and analyzes the “implementation gap,” showing how important reform recommendations, like those issued by Families Against Mandatory Minimums, can be limited in their application by jurisdictional differences and nuances. To resolve this problem, in Part III, the authors introduce the Compassionate Release Lexicon (‘the Lexicon’), a new analytic framework that identifies four core functional roles present in every CRP: the Initiator, the Processor, the Decision-Maker, and the Ultimate Decision-Maker. The Lexicon provides a standardized vocabulary for describing how CRPs operate, regardless of jurisdictional variation in terminology or institutional design. By mapping each provision onto these functional roles, the Lexicon allows stakeholders to identify structural barriers, compare provisions across jurisdictions, and tailor reforms to the operational realities of each CRP. Part IV uses the Lexicon to conduct a jurisdiction-specific structural analysis of Washington’s Extraordinary Medical Placement (EMP) provision, demonstrating how functional mapping and administrative data can identify bottlenecks and guide targeted reforms. It then uses the Lexicon to compare Ohio’s Judicial Release provision with the federal CRP, both of which use the sentencing court to authorize release. Applying the Lexicon reveals significant differences between the functionality of these provisions, demonstrating how it can be used to both compare decision-making chains and guide jurisdictions on how they could share best practices. Overall, this article concludes that compassionate release has historically served more as an administrative safety valve than as a policy grounded in compassion, and that its current underutilization is driven not just by statutory limits, but also institutional design and procedural bottlenecks. The authors argue that the Lexicon provides a method for diagnosing these problems and for enhancing the implementation of reforms that are sensitive to the diverse mechanisms and jurisdictional nuances through which compassionate release operates.