From the Editor: Compassionate Release for Extraordinary and Compelling Reasons
by Richard Resch
As our regular readers know, there has been a relative flurry of activity recently involving the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), the First Step Act of 2018, S. 3747, 115th Cong., and the so-called Holloway doctrine, United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014). Some very clever and innovative people are using them to argue that federal district court judges are now empowered to take a second look at unduly harsh sentences and reduce them if “extraordinary and compelling reasons” exist. Encouragingly, this position appears to be gaining traction with federal district court judges.
In our June 2019 issue, staff writer Chad Marks introduced readers to this topic in his article titled “The Holloway Doctrine and First Step Act: Federal Judge Issues Order Urging Government to Dismiss One of Two 18 U.S.C. § 924(c) Stacking Convictions,” in which he details his own decades-long sentence and quest for relief utilizing the foregoing provisions in arguing for his compassionate release based upon extraordinary and compelling reasons.
We now have the good fortune of providing readers with Professor Shon Hopwood’s thoughts and guidance on the matter. Shon is at the very forefront of this movement.
He served over a decade in federal prison, and upon his release, he earned a college degree as well as a law degree with honors. He then clerked for a federal judge and became licensed to practice law in Washington state and Washington, D.C. He’s currently an Associate Professor of Law at Georgetown University Law Center. On April 1, 2019, President Donald J. Trump honored him at a White House ceremony for his tireless work on criminal justice reform.
Shon has graciously given permission to Criminal Legal News to reprint his blog posts together with his “Sample brief for Compassionate Release under 18 U.S.C. 3582(c)(1)(A).” I want to take this opportunity to express my sincere gratitude for allowing us to share his insightful work with our readers.
Shon’s following post was published on his blog prisonprofessors.com on June 18, 2019.
A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act
There is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present. Over the weekend, I posted both a law review article (entitled Second Looks & Second chances that will be published by Cardozo Law Review) and a sample brief (that will form the basis of challenging Adam Clausen’s ridiculous 213-year federal sentence). Both discuss the reasons why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly. See 18 U.S.C. § 3582(c)(1)(A).
In my article, I explain that there is a long history of second look provisions in American law, and why second look provisions are normatively desirable. More importantly, the text and history of Section 3582(c) supports the view that, when Congress first enacted the compassionate release statute in 1984, it intended compassionate release to act as a second look provision to take the place of federal parole, which Congress was abolishing. The problem was that Congress gave the power to trigger a sentence reduction under the compassionate release statute to the Director of the Federal Bureau of Prisons (“BOP”).
Leaving the BOP Director with ultimate authority to trigger and set the criteria for compassionate release sentence reductions created several problems. The Office of the Inspector General found that, among many other problems, the BOP failed to provide adequate guidance to staff regarding the criteria for compassionate release and that BOP had no timeliness standards for reviewing such requests. As a result of these problems and others, the OIG concluded that: “BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”
Congress heard the complaints. Congress passed, and President Trump signed, the First Step Act of 2018, which, among other things, changed the procedures and ultimately the criteria for when a person in federal prison can seek a sentence reduction under the compassionate release statute in 18 U.S.C. § 3582(c)(1)(A)(i). After the changes made by First Step, federal prisoners can file a motion for a sentence reduction, and federal district courts are authorized to reduce a sentence even if the BOP fails to respond or even in the face of BOP opposition to a sentence reduction.
Under the First Step Act, Congress took the power that previously resided with the BOP Director to trigger and set the criteria for sentence reductions and transferred it to Article III courts—where it should be.
I will have more to say in future blog posts over the coming days.
The article is still a work in progress, so I welcome any comments on it or the sample brief.
P.S. There were a number of people who have reviewed drafts and provided invaluable comments on the article and the legal argument for expanded use of compassionate release. But I want to highlight one of them: Ohio State Professor Douglas Berman not only helped me refine the legal argument, but he is also a consistent source of encouragement. I used to read Doug’s Sentencing Law and Policy blog while I was in federal prison; it is blessing to be able to work on issues related to federal sentencing with him outside of prison. Thank you, Doug!
Shon’s following post was published on his blog prisonprofessors.com on June 24, 2019.
Federal District Court Judge uses compassionate release as a second look resentencing provision
I recently posted about my new law review article called Second Looks & Second Chances, and the argument that federal district court judges may use the compassionate release, as amended by the First Step Act, to give second looks in individual cases and then reduce the sentences in those cases. Last week, a federal district court in the Southern District of Texas used compassionate release for just this purpose.
District Court Judge Marina Garcia Marmolejo resentenced Conrado Cantu to time served. See United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019). Judge Marmolejo did so after finding that Cantu presented “extraordinary and compelling reasons” for a sentence reduction under the compassionate release statute contained in 18 U.S.C. § 3582(c)(1)(A).
Importantly, Judge Marmolejo held that the criteria contained in the Sentencing Guidelines for compassionate release was inconsistent with the changes that Congress made to the compassionate release statute in the First Step Act. Because of that conflict, she concluded:
Thus, the correct interpretation of § 3582(c)(1)(A)—based on the text, statutory history and structure, and consideration of Congress’s ability to override any of the Commission’s policy statements “at any time,” Mistretta v. United States, 488 U.S. 361, 394 (1989)—is that when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief.
This is the first case, of which I’m aware, that a federal judge has held that nothing in the statutory text of § 3582(c), nor the Sentencing Guidelines, precludes a judge from making its own determination of what are “extraordinary and compelling” circumstances warranting a reduction of sentence. I hope to see many more.
I continue to believe that Congress intended for compassionate release to act as a second look provision in 1984, when it enacted the compassionate release provision while at the same time abolishing federal parole. The problem was that Congress handed over the triggering mechanism to the Director of the Bureau of Prisons, which gave the Director the power to set the criteria no matter what the U.S. Sentencing Commission said. Congress fixed that problem in the First Step Act, by allowing federal judges to have the authority to reduce sentences even if the BOP Director finds that extraordinary and compelling reasons aren’t present. And the criteria in U.S.S.G. § 1B1.13 cmt. n.1(D) is inconsistent with these congressional changes and thus is no longer binding on federal judges.
Shon’s following post was published on his blog prisonprofessors.com on June 25, 2019.
Another federal judge uses compassionate release as a second look resentencing provision
Another federal judge has found that the criteria for compassionate release, contained in the U.S. Sentencing Guidelines, is inconsistent with the statutory changes made by the First Step Act. Yesterday, Federal Judge Sim Lake reduced Arturo Cantu-Rivera’s prior sentence of two concurrent life sentences to time served.
Judge Lake based the sentence reduction on two grounds. Judge Lake first found that Cantu-Rivera met the age-related criteria under the Guidelines. But more importantly, Judge Lake found that U.S.S.G. § 1B1.13 comm. n.(1)(D) was inconsistent with the statutory changes made by Congress through the First Step Act. See page 3, n.1 (“Because the current version of the Guideline policy statement conflicts with the First Step Act, the newly-enacted statutory provisions must be given effect.”). He then used that very criteria to justify the sentence reduction.
As I’ve been blogging about for the past week, the compassionate release statute, as amended by the First Step Act, can be used by federal judges to provide a second look for people in federal prison who received long sentences and have a demonstrated record of rehabilitation. I write about this second look provision in a new essay called Second Looks & Second Chances and in a sample brief, both of which I posted online.
The following is an excerpt from Shon’s Sample Brief.
I. This Court Has Authority to Resentence Clausen under Section 3582(C)(1)(A)(i) for the Extraordinary and Compelling Reasons Presented Here.
With the changes made to the compassionate release statute by the First Step Act, courts need not await a motion from the Director of BOP to resentence prisoners to time served under 18 U.S.C. § 3582(c)(1)(A)(i) for “extraordinary and compelling reasons,” and the reasons that can justify resentencing need not involve only medical, elderly, or family circumstances.
A. When Congress originally enacted § 3582 in 1984, it intended for district courts to reduce sentences for prisoners on the basis of extraordinary and compelling reasons not limited to medical, family, or elderly circumstances.
Congress first enacted the modern form of the compassionate release statute contained in 18 U.S.C. § 3582 as part of the Comprehensive Crime Control Act of 1984. Section 3582(c) states that a district court can modify even a final “term of imprisonment” in four situations, the broadest of which is directly relevant here. A sentencing court can reduce a sentence if and whenever “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). In 1984, Congress conditioned the reduction of sentences on the BOP Director filing an initial motion in the sentencing court; absent such a motion, sentencing courts had no authority to modify a prisoner’s sentence for extraordinary and compelling reasons. Id.
Congress never defined what constitutes an “extraordinary and compelling reason” for resentencing under § 3582(c). But the legislative history gives an indication of how Congress thought the statute should be employed by federal courts. One of Congress’s initial goals in passing the Comprehensive Crime Control Act was to abolish federal parole and create a “completely restructured guidelines sentencing system.” S. Rep No. 98-225, at 52, 53 n.74 (1983). Yet, recognizing that parole historically played a key role in responding to changed circumstances, the Senate Committee stressed how some individual cases may still warrant a second look at resentencing:
The Committee believes that there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defender was convicted have been later amended to provide a shorter term of imprisonment.
Id. at 55–56 (emphasis added). Rather than having the Parole Commission review every federal sentence focused only on an offender’s rehabilitation, Congress decided that § 3582(c) could and would enable courts to decide, in individual cases, if “there is a justification for reducing a term of imprisonment.” Id. at 56.
Congress intended for the situations listed in § 3582(c) to act as “safety valves for modification of sentences,” id. at 121, that enabled sentence reductions when justified by various factors that previously could have been addressed through the (now abolished) parole system. This particular safety valve would “assure the availability of specific review and reduction to a term of imprisonment for ‘extraordinary and compelling reasons’ and [would allow courts] to respond to changes in the guidelines.” Id. Noting that this approach would keep “the sentencing power in the judiciary where it belongs,” rather than with a federal parole board, the statute permitted “later review of sentences in particularly compelling situations.” Id. (emphasis added).
Congress thus intended to give federal sentencing courts an equitable power that would be employed on an individualized basis to correct fundamentally unfair sentences. And there is no indication that Congress limited the safety valve of § 3582(c)(1)(A) to medical or elderly release; if extraordinary and compelling circumstances were present, they could be used to “justify a reduction of an unusually long sentence.” S. Rep No. 98-225, at 55–56.
B. The U.S. Sentencing Commission concluded that § 3582(c)(1)(A)’s “extraordinary and compelling reasons” for compassionate release are not limited to medical, elderly, or family circumstances.
Congress initially delegated the responsibility for determining what constitutes “extraordinary and compelling reasons” to the U.S. Sentencing Commission (“Commission”). See 28 U.S.C. § 994(t) (“The Commission . . . shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.”). Congress provided only one limitation to that delegation of authority: “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t) (emphasis added). Congress no doubt limited the ability of rehabilitation alone to constitute extraordinary circumstances so that sentencing courts could not use it as a full and direct substitute for the abolished parole system. Congress, however, contemplated that rehabilitation could be considered with other extraordinary and compelling reasons sufficient to resentence people in individual cases. Indeed, the use of the modifier “alone” signifies just the opposite: that rehabilitation could be used in tandem with other factors to justify a reduction.
The Commission initially neglected its duty, leaving the BOP to fill the void and create the standards for extraordinary and compelling reasons warranting resentencing under § 3582(c)(1)(A). [ ] The Commission finally acted in 2007, promulgating a policy that extraordinary and compelling reasons includes medical conditions, age, family circumstances, and “other reasons.” U.S.S.G. § 1B1.13, application note 1(A). After a negative DOJ Inspector General report found that the BOP had rarely moved courts for a § 3582(c)(1)(A) modification even for prisoners who met the objective criteria, see U.S. Dep’t of Justice Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program (Apr. 2013) (“FBOP Compassionate Release Program”), the Commission amended its policy statement, expanding the guidance to courts on qualifying conditions and admonishing the BOP to file motions for compassionate release whenever a prisoner was found to meet the objective criteria in U.S.S.G. § 1B1.13. Id. at application note 4; see also United States v. Dimasi, 220 F. Supp. 3d 173, 175 (D. Mass. 2016) (discussing the progression from the OIG report to new “encouraging” guidelines).
The Commission created several categories of qualifying reasons: (A) “Medical Conditions of the Defendant,” including terminal illness and other serious conditions and impairments; (B) “Age of the Defendant,” for those 65 and older with serious deterioration related to aging who have completed at least 10 years or 75 percent of the term of imprisonment; (C) “Family Circumstances,” where a child’s caregiver or spouse dies or becomes incapacitated without an alternative caregiver; and (D) “Other Reasons,” when the Director of the BOP determines there is “an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” Id., application note 1(A). The Commission also clarified that the extraordinary and compelling reasons “need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.” U.S.S.G. § 1B1.13, application note 2. In other words, even if an “extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court, [that fact] does not preclude consideration for a [sentence] reduction.” Id.
Consistent with the text and legislative history of § 3582(c), the Commission concluded that reasons beyond medical, age, and family circumstances could qualify as “extraordinary or compelling reasons” for resentencing, and that the extraordinary or compelling reasons need not be based on changed circumstances occurring after the initial sentencing of the defendant.
C. Through the First Step Act, Congress changed the process for compassionate release based on criticism of BOP’s inadequate use of its authority, returning to the federal judiciary the authority to act on its own to reduce sentences for “extraordinary and compelling reasons.”
Prior to Congress passing the First Step Act, the process for compassionate release under § 3582(c)(1)(A) was as follows: the U.S. Sentencing Commission set the criteria for resentencing relief under § 3582(c), and the only way a sentencing court could reduce a sentence was if the BOP Director initiated and filed a motion in the sentencing court. See PL 98–473 (HJRes 648), PL 98–473, 98 Stat 1837 (Oct. 12, 1984). If such a motion was filed, the sentencing court could then decide where “the reduction was justified by ‘extraordinary and compelling reasons’ and was consistent with applicable policy statements issued by the Sentencing Commission.” Id. So even if a federal prisoner qualified under the Commission’s definition of extraordinary and compelling reasons, without the BOP Director’s filing a motion, the sentencing court had no authority to reduce the sentence, and the prisoner was unable to secure a sentence reduction. This process meant that, practically, the BOP Director both initiated the process and set the criteria for whatever federal prisoner’s circumstances the Director decided to move upon. [ ]
Leaving the BOP Director with ultimate authority for triggering and setting the criteria for sentence reductions under § 3582(c)(1)(A) created several problems. The Office of the Inspector General found that the BOP failed: to provide adequate guidance to staff on the criteria for compassionate release, to set time lines for reviewing compassionate release requests, to create formal procedures for informing prisoners about compassionate release, and to generate a system for tracking compassionate release requests. See FBOP Compassionate Release Program, at i–iv. As a result of these problems, the OIG concluded that “BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.” Id.; see generally Stephen R. Sady & Lynn Deffebach, Second Look Resentencing Under 18 U.S.C. § 3582(c) as an Example of Bureau of Prisons Policies That Result in Overincarceration, 21 Fed. Sent. Rptr. 167 (Feb. 2009).
Congress heard those complaints. In late 2018, Congress passed the First Step Act, part of which transformed the process for compassionate release under § 3582(c)(1)(A). See P.L. 115-391, 132 Stat. 5194, at § 603 (Dec. 21, 2018). Section 603 of the First Step Act changed the process by which § 3582(c)(1)(A) compassionate release occurs: instead of depending upon the BOP Director to determine an extraordinary circumstance and then move for release, a court can now resentence “upon motion of the defendant,” if the defendant has fully exhausted all administrative remedies, “or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Once the defendant who has properly exhausted files a motion, a court may, after considering the 18 U.S.C. § 3553(a) factors, resentence a defendant, if the court finds that extraordinary and compelling reasons warrant a reduction. Id. Any reduction of a sentence that a court orders must also be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The effect of these new changes is to allow federal judges the ability to move on a prisoner’s compassionate release application even in the face of BOP opposition or its failure to respond to a prisoner’s request for compassionate release in a timely manner. Congress made these changes in an effort to expand the use of compassionate release sentence reductions under § 3582(c)(1)(A). Congress labeled these changes, “Increasing the Use and Transparency of Compassionate Release.” 164 Cong. Rec. H10346, H10358 (2018) (emphasis added). Senator Cardin noted in the record that the First Step Act made several reforms to the federal prison system, including that “[t]he bill expands compassionate release under the Second Chance Act and expedites compassionate release applications.” 164 Cong. R. 199, at S7774 (Dec. 18, 2018) (emphasis added). In the House, Representative Nadler noted that First Step included “a number of very positive changes, such as . . . improving application of compassionate release, and providing other measures to improve the welfare of 11 Federal inmates.”164 Cong. Rec. H10346-04, 164 Cong. Rec. H10346-04, H10362 (Dec. 20, 2018) (emphasis added). Federal judges now have the power to order reductions of sentences even in the face of BOP resistance or delay in the processing of applications. The legislative history leading up to the enactment of the First Step Act establishes that Congress intended the judiciary not only to take on the role that BOP once held under the preFirst Step Act compassionate release statute as the essential adjudicator of compassionate release requests, but also to grant sentence reductions on the full array of grounds reasonably encompassed by the “extraordinary and compelling” standard set forth in the applicable statute.
D. Statutory text defines judicial sentence reduction authority around “extraordinary and compelling reasons,” and the policy statements of the U.S. Sentencing Commission under § 1B1.13 do not preclude this Court from resentencing Clausen.
Once a prisoner has properly pursued administrative remedies and filed a motion for compassionate release, a federal court possesses authority to reduce a sentence if and whenever the court finds “extraordinary and compelling reasons warrant such a reduction.” A court must consider the 18 U.S.C. § 3553(a) sentencing factors in reducing any sentence, and any reduction of a sentence that a court orders must also be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
As noted above, the Sentencing Commission created a catch-all provision for compassionate release under U.S.S.G. § 1B1.13, application note (1)(D), which states:
Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
The Commission also stated the process by which compassionate release reductions should be decided:
Motion by the Director of the Bureau of Prisons.—A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).
U.S.S.G. § 1B1.13, application note 4.
The dependence on BOP in these policy statements is a relic of the prior procedure that is now inconsistent with the First Step Act’s amendment of § 3582(c)(1)(A).
Application note 1(D) can no longer limit judicial authority to cases with an initial determination by the BOP Director that a prisoner’s case presents extraordinary or compelling reasons for a reduction, because the First Step Act has expressed allows courts to consider and grant sentence reductions even in the face of an adverse or unresolved BOP determination concerning whether a prisoner’s case is extraordinary or compelling. See 18 U.S.C. § 3582(c)(1)(A), as amended by P.L. 115-391 § 503 (Dec. 21, 2018). And the Commission’s now-dated statement indicating that the BOP must file a motion in order for a court to consider a compassionate release sentence reduction no longer controls in the face of the new statutory text enacted explicitly to allow a court to consider a reduction even in the absence of a BOP motion. Id. With the First Step Act, Congress decided that federal judges are no longer constrained or controlled by how the BOP Director sets its criteria for what constitutes extraordinary and compelling reasons for a sentence reduction. Consequently, those sections of the application notes requiring a BOP determination or motion are not binding on courts. See Stinson v. United States, 508 U.S. 36, 38 (1993) (“We decide that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). Put differently, now that the First Step Act has recast the procedural requirements for a sentence reduction, even if a court finds there exists an extraordinary and compelling reason for a sentence reduction without the BOP Director’s initial determination, then the sentence reduction is not inconsistent “with the applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).