The combination of the passage of the First Step Act and the COVID-19 pandemic has led to a dramatic increase in compassionate releases from the Bureau of Prisons. The Bureau of Prisons now reports more than 1,704 compassionate releases or reductions in sentences since the First Step Act was passed – compared to only 34 total grants in 2018.

The Second Circuit recently issued a decision that will support the expansion of compassionate release beyond the pandemic. In United States v. Brooker, --F.3d--, 2020 WL 5739712 (2d Cir. Sept. 25, 2020) the Court 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 in motions for compassionate release” and that the only statutory limit was that rehabilitation alone could not count.  In Brooker, however, rehabilitation plus the defendant’s age at the time of his crime, and an unusually long sentence could constitute extraordinary and compelling circumstances.   The Fourth Circuit heard oral argument on a similar issue on September 10, 2020, United States v. McCoy, No. 20-6821, and is expected to rule any day.