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COMPASSIONATE RELEASE AIN’T WHAT IT USED TO BE
A Sentencing Commission report issued last week chronicled a slow but consistent slide in the rate of compassionate release motions being granted by district courts, even while highlighting how inconsistencies among federal courts are resulting in gross sentence disparities.
The First Step Act granted the right to prisoners to file their own motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). For the 30 years prior to that, only the Bureau of Prisons was permitted to file on behalf of the prisoner, and – unsurprisingly – the BOP was greatly disinclined to ask any court to let any of its wards go home early.
In the year following First Step’s passage, around 450 compassionate release motions were filed. But in April 2020, with onset of the COVID-19 pandemic, the numbers skyrocketed. Nearly as many compassionate release motions were filed in April 2020 (436) as in all of the 15 prior months. By July 2020, over 1,500 a month were being submitted.
Everyone was scared. But as COVID became more common, the monthly numbers declined. In September 2020, 1,363 were filed, with 19% granted. A year later (September 2021), 456 motions were filed with 11% granted.
The report highlights striking variations in grant rates among the 94 federal districts. Oregon repudiates its nickname of The Land of Hard Cases, remaining the best place, statistically, to file. Of 144 motions, 63% have been granted. The back of the pack includes Western North Carolina (only 3.4% of 534 granted), Eastern Texas (2.0% of 349 granted) and Southern Georgia (2.0% of 248 granted). The average grant rate since the First Step Act permitted the filing of compassionate release motions by inmates themselves is 17.2% out of 3,867 motions.
Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “the District of Maryland — with a total of 211 sentencing reduction motions granted (though “only” a grant rate of 32.7% with 646 motions) — granted more of these motions than all the courts of the Fifth Circuit!” The 5th Circuit has the lower grant rate (9.3% of the 2,197 total brought) of all the circuits.
Not surprisingly, the longer one has been in prison, the better the chances for compassionate release. People with sentences over 20 years had a 26.2% grant rate, compared to a 3.8% grant rate for people with a sentence of 24 months or fewer. But here’s a strange inversion: people with lowest criminal history had a 30.0% grant rate, while those with a moderate history only had a 12% grant rate. But inmates with the worst history had a grant rate of 29.2%, almost as good as those with no prior convictions.
But the most beneficial information in the Report is the list of reasons that compassionate release motions were denied. Courts found that 18 USC § 3553(a) sentencing factors and the need to protect the public required denial in 33.1% of all compassionate release motions. Behind that were the movants’ failure to show they were at risk from COVID factors or a serious medical condition (26.4%), followed by failure to exhaust administrative remedies (17.9%). These amounted to nine out of ten reasons for denial (the courts failed to list reasons in 10% of the cases).
If it provides no other benefit, the Report suggests that compassionate release – far from being the relief First Step Act intended – has become an enormous geographical crapshoot, and a driver of sentence disparity.
US Sentencing Commission, Compassionate Release Data Report – Fiscal Years 2020 to 2021 (May 8, 2022)
Sentencing Law and Policy, US Sentencing Commission releases latest detailed “Compassionate Release Data Report” (May 9, 2022)
– Thomas L. Root