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This term, the court decided several important separation of powers cases. In Trump v. Slaughter and Trump v. Cook, the court addressed the relationship between Congress and administrative agencies in the executive branch. Less noticed were the court’s decisions in Rutherford v. United States and Fernandez v. United States, in which the justices considered the balance of authority between Congress and the judiciary. Although Rutherford and Fernandez may have garnered little attention as separation of powers decisions, they place substantial – and welcome – limitations on federal courts’ authority to undermine Congressional judgments in the area of criminal law.
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In 2018, Congress passed the bipartisan First Step Act, the most significant criminal justice legislation in a generation. Among other reforms, the FSA expanded federal inmates’ access to “compassionate release” – a form of post-conviction relief codified in 18 U.S.C. § 3582(c). That statute instructs that a “court may not modify a term of imprisonment once it has been imposed except” where a court “finds that extraordinary and compelling reasons warrant” a sentence reduction.
In Rutherford and Fernandez, the court limited the scope of lower courts’ authority to grant compassionate release. Although the court did not precisely define the kind of “extraordinary and compelling reasons” that might warrant relief, it abrogated decisions from the U.S. Courts of Appeals for the 1st, 4th, 9th, and 10th Circuits in which those courts construed the compassionate release statute as modified by the FSA to confer nearly unfettered authority on the lower courts to reduce otherwise final (and otherwise lawful) sentences.
Much of the commentary about Rutherford and Fernandez has understandably focused on the limitations those decisions place on lower courts’ authority with respect to federal inmates. But the court’s opinions take a wider perspective. They are focused not on the relationship between the courts and inmates, but rather on the courts and Congress.
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Compassionate release in the federal system dates back 50 years. The original compassionate release statute, passed in 1976, provided that a court could reduce an inmate’s sentence to time served, but only upon a motion made by the Director of the Bureau of Prisons. BOP regulations issued in 1980 limited such motions to “particularly meritorious or unusual circumstances which could not reasonably have been foreseen by the court at the time of sentencing” like “an extraordinary change in an inmate’s personal or family situation or if an inmate becomes severely ill.” In 1984, Congress replaced the original statute with a new version, which retained the BOP Director as gatekeeper and introduced the “extraordinary and compelling” standard found in the current version of the statute. In another provision of the 1984 law, now codified in 28 U.S.C. § 994(t), Congress delegated authority to the U.S. Sentencing Commission to define the “extraordinary and compelling” standard with one substantive restriction: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”
The Sentencing Commission’s long gestating definition, finally incorporated into the Sentencing Guidelines in 2007, was broadly consistent with the BOP’s 1980 regulations. The Commission provided “specific examples” of the kind of “extraordinary and compelling reasons” that would warrant relief, including a “terminal illness,” certain “permanent physical or medical condition[s],” and the death of the inmate’s “only family member capable of caring for” the inmate’s child or children. In 2016, the Sentencing Commission reaffirmed this understanding of the standard and provided further guidance about the kinds of “medical[s] condition[s]” and “family circumstances” to which it might apply. With the BOP Director as gatekeeper, compassionate release motions during this period were exceedingly rare.
The FSA made only one change to the compassionate release statute, but it was a big one: as the court explained in Rutherford, Congress “left the ‘extraordinary and compelling’ standard untouched,” but removed the BOP Director as gatekeeper. After the FSA, inmates are no longer barred from seeking relief absent a motion from the BOP Director on their behalf; the FSA authorizes inmates to seek compassionate release in federal courts on their own behalf.
In the eight years since the FSA was enacted, courts have been flooded with petitions for compassionate release. Nearly 11,000 inmates moved for compassionate release in the first three months of the COVID-19 pandemic, and the latest data from the Department of Justice indicates that district courts have entertained nearly 37,000 compassionate release petitions through the end of FY 2025.
This deluge of petitions required courts to consider the allocation of judicial and legislative authority in the area of criminal law. After all, in our system, as the Supreme Court has explained, “the power of punishment is vested in the legislative, not in the judicial department,” and “[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment.” In other words, after the FSA, courts addressing compassionate release petitions had to determine precisely how much substantive authority Congress intended to confer on the judiciary to amend otherwise final and lawful criminal sentences when it eliminated the BOP Director as gatekeeper for compassionate release petitions.
Deep fissures quickly emerged among the circuits. Some circuits held that the FSA’s procedural amendment to the compassionate release statute was not intended to confer additional substantive authority on federal courts to reduce final sentences. As the U.S. Court of Appeals for the 3rd Circuit held in 2021, “Congress legislates against the backdrop of existing law,” and when “Congress reenacted the compassionate-release statute without any alterations to the phrase ‘extraordinary and compelling reasons,’ . . . ‘the phrase largely retained the meaning it had under the previous version of the statute.’” “[A]t its core,” the U.S. Court of Appeals for the D.C. Circuit explained, compassionate release “[m]ost obviously . . . covers factors” related to an inmate’s “health, age, and family circumstances,” i.e., factors related to “post-sentencing changes to a prisoner’s individual situation.”
But other circuits understood this part of the FSA as a sweeping grant of authority to revisit otherwise final sentences for, as Fernandez put it, “virtually any reason whatsoever.” This construction of the compassionate release statute, as modified by the FSA, originated with the U.S. Court of Appeals for the 2nd Circuit’s 2020 decision in United States v. Brooker (Zullo) – an opinion that escaped citation in Rutherford and Fernandez, but which laid the groundwork for the assertion of judicial authority that the court ultimately rejected in those cases.
Brooker relied on two essential premises. The first was that the FSA’s procedural change to the compassionate release statute “freed district courts” to construe the phrase “extraordinary and compelling reasons” without reference to the historical purpose of compassionate release, or the meaning ascribed to that phrase by the Sentencing Commission since 2007. The second premise was that “[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation … alone shall not be considered an extraordinary and compelling reason.”
In the view of some lower courts, Brooker’s second premise conferred immense authority on the judiciary. Those courts drew the following negative inference: if, as the court concluded in Brooker, the only statutory limit on compassionate release is that “rehabilitation alone” cannot support relief, it follows that courts may rely on any reason other than rehabilitation, or any “complex of circumstances” to grant relief (even a complex of circumstances that includes rehabilitation). As the 1st Circuit put it, the scope of a district court’s authority to grant compassionate release was governed by the maxim “expressio unius est exclusio alterius” (“the expression of one thing is the exclusion of the other”). By excluding “rehabilitation alone” as a basis for relief, these courts reasoned, Congress authorized courts to grant relief on any other basis.
In Rutherford and Fernandez, both authored by Justice Amy Coney Barrett, the court rejected this reasoning and, with it, the extraordinary authority it transferred from Congress to the courts. “[T]he force of any negative implication,” the court explained in Rutherford, “depends on context” – context that some lower courts ignored. As the court noted in Rutherford, in the FSA, Congress did not alter the substantive standard for compassionate release; it simply “opened a new procedural route for seeking a [sentence] reduction.” And, the court further noted, compassionate release has “long been defined by a prisoner’s personal circumstances,” including, for example, serious illness or an extraordinary change in the inmate’s family situation.
The court also looked beyond the compassionate release statute for evidence of Congress’ intent. At issue in Rutherford was whether Congress’ non-retroactive reduction of sentences for certain federal gun crimes gave rise to sentencing disparities that could constitute an “extraordinary and compelling” reason warranting a reduction. The court breezily rejected that claim, explaining that when Congress amends criminal penalties, non-retroactivity is “the norm,” and therefore any disparities that arise from such amendments cannot be “extraordinary.” In a conclusion that had been clear enough to some lower courts, the court explained that Congress’ express decision not to make a sentencing reduction retroactive is not a “compelling” reason to reduce a sentence that Congress expressly chose “to leave . . . intact.”
In Fernandez, the issue was whether the compassionate release statute, as amended by the FSA, could be used as an end run around the detailed statutory scheme through which Congress has routed all challenges to the validity of an inmate’s conviction (that is, habeas review under 28 U.S.C. § 2255). A challenge to the validity of an inmate’s conviction cannot be “extraordinary and compelling,” the court explained, if it fails under the mechanism Congress expressly designed to adjudicate such challenges.
Towards the end of Rutherford, the court made explicit its concern about judicial aggrandizement at Congress’ expense when it noted and rejected the “sweeping” implications of a contrary outcome. By the logic of the opinions abrogated in Rutherford and Fernandez, Congress ceded much of its constitutional authority over criminal law and punishments (not to mention acts of lenity) in the FSA by simply modifying the procedural clause of the compassionate release statute. In rejecting this claim to judicial authority, the court posited “a judge who believes that a mandatory minimum [that is, a statutorily required punishment that a defendant must receive for his offense] is unduly harsh” and asked, incredulously, “[c]ould she treat the severity of the sentence as an ‘extraordinary and compelling reason’ for compassionate release?” The court noted that “[p]etitioners refused to rule out this possibility at oral argument,” and nor could they: lower courts’ claim to that remarkable authority followed from the negative inference drawn in Brooker and its progeny. But, as the court reiterated, “‘[i]t is the legislature, not the Court, which is to define a crime, and its punishment,’” and “[t]reating the severity of a mandatory penalty as a reason for compassionate release rejects Congress’s judgment that the punishment fits the crime.”
The court’s hypothetical judge was not a strawman. In Brooker, after all, the court suggested that the FSA’s procedural amendment authorized courts to grant compassionate release simply because the court viewed the inmate’s sentence as “too long in the first place.” And in the eight years between enactment of the FSA and Barret’s opinions in Rutherford and Fernandez, many courts accepted Brooker’s invitation to revisit final and lawful sentences on the kind of policy grounds that are Congress’ prerogative. In United States v. Ramsay, to take one example, a district court granted compassionate release to an inmate who killed two innocent bystanders (including a pregnant woman whose baby subsequently died in an emergency delivery) while attempting to kill a member of a rival drug gang. The court cited Brooker and granted relief, reducing his sentence from life imprisonment to 30 years because the inmate was 18 years old at the time of the offense. That may be a desirable policy position, but it is one that Congress has rejected by imposing a mandatory minimum sentence of life imprisonment for murders, like Ramsay’s, committed in connection with a racketeering enterprise.
Other courts relied on Ramsay’s astonishing claim to judicial authority to grant relief to inmates who committed violent offenses, including murder, at 19 years old, 20 years old, 22 years old (subsequently vacated by the 3rd Circuit), and between the ages of 20 and 25 years old (subsequently vacated by the Supreme Court following Rutherford and Fernandez).
These decisions – and many more among the nearly 6,000 petitions granted through the end of FY 2025 – resemble the kind of highly subjective and often arbitrary decisions made in parole systems, but with even fewer guardrails and less accountability. Indeed, at the federal level, that kind of decision making gave rise to an “unacceptable disparity of punishment” that led Congress to abolish federal parole in 1984. So, too, in the compassionate release context. As the chief judge of the Northern District of Iowa wrote in 2025, this understanding of compassionate release may be “well-intentioned,” but it is an “ill-conceived concept that once again places unfettered discretionary decision-making authority in the hands of individual judges.” This, in turn, “inevitably invites inconsistent and arbitrary application of the provisions based on judges’ idiosyncratic beliefs and values.”
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Rutherford and Fernandez reset the equilibrium between Congress and the courts with respect to crimes and punishments. The policy issues raised in Rutherford, Fernandez, Brooker, Ramsay, and any number of other compassionate release cases are difficult, but they cannot and should not be resolved by the courts on an ad hoc basis. As the chief judge of the Northern District of Iowa noted, this approach “do[es] not correct, but compound[s], the danger of unwarranted disparity and arbitrary justice,” all while sidestepping the “electoral process should the people disagree with the exercise of that authority in releasing, or failing to release, offenders.” In Rutherford and Fernandez, the court rejected that system, left open the possibility that Congress would grant further lenity to federal inmates, and thereby fulfilled its duty to preserve the separation of powers vital to our nation’s system of government.
