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Compassionate Release Numbers: Data Without Benefits – Update for September 23, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NUMBED BY NUMBERS

numbersThe U.S. Sentencing Commission recently issued an updated report on compassionate release, covering all of the filings since October 1, 2019 (six months before the pandemic began) through last March.

In 30 months, we learn, 25,416 motions were filed, with 16.7% (4,234) granted. Good to know for this weekend’s cocktail-party chatter, but functionally useless.

Most people currently filing 18 USC § 3582(c)(1)(A)(i) sentence reduction motions – inaccurately but generally known as “compassionate release” motions – don’t care about the 30-month average. What courts were doing in the few months prior to the pandemic – or, for that matter, in the early pandemic when COVID raged and everyone was scared – has hardly any relevance to what they are doing today. People want to know what has been happening in the last few months (last March, for example, 13.4% of 479 motions were granted).

We do learn that over the 30 months studied, Eastern District of Texas (2.6%), Southern District of Georgia (2.2%) and Middle District of Georgia (1.7%) were the worst places to get relief. The best places to be remain locations such as California (except the Eastern District) at 35.8%, Kansas at 41.9%, Connecticut at 37.2%, Massachusetts at 44.8% and Oregon at 59%.

Some districts have even better numbers, but the number of motions filed in those jurisdictions is so small as to make the grant/denial percentage in those districts meaningless.

My problem with the data is this: Given the waning pandemic, the position taken by some circuits that inmate vaccination disqualifies the risk of COVID as a basis for compassionate release, and the decision by almost all circuits that USSG § 1B1.13 does not limit the groups that may be raised in an inmate-filed compassionate release motion, how district courts may be acting on compassionate release motions today may bear scant resemblance to what was being done, say, in April 2020. That being the case, it is tough to take away much from a comparison of a judicial district’s grant rate over a 30-month period. A period of six to 12 months would make a lot more sense.

I am surprised by some commentators bemoaning the fact that there are wide disparities among the districts. That’s what happens when federal judges are permitted to exercise almost unbridled discretion. Ohio State law professor Doug Berman, writing in his Sentencing Law and Policy blog, complained that

perhaps most striking data points are the dramatic variations in grant rates from various districts. As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.

One commenter to Berman’s post responded, “When you tell judges they can do whatever they care to, without any standards that are going to get enforced, this is what you’re going to get. Any resemblance between this and ‘Equal Justice Under Law’ is strictly coincidental.”

Roybean220923CMaybe so, but “standards that are going to get enforced” sounds a lot like the bad old days of mandatory guidelines. You can’t have it both ways. Judges exercising a lot of discretion can take individual factors into account the way that uniform standards applying across all 94 federal districts cannot. On the other hand, standards can limit the baser instincts of the Judge Roy Beans of the federal judiciary.

Perhaps our newly-reconstituted Sentencing Commission can find a happy (pro-defendant) medium.

U.S. Sentencing Commission, Compassionate Release Data Report (Fiscal Years 2020 to 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest “Compassionate Release Data Report” with detailed data through March 2022 (September 12, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 2022

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DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

A Silver Lining In The Omicron Ugliness? – Update for December 21, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IT WAS THE BEST OF TIMES…

best210111So omicron is unlikely to respect that you’ve had COVID before or been vaccinated, and there’s no reason to believe that it’s milder than its predecessors (see below). What could possibly be good about that?

What’s good is that this may represent the last best chance for inmates to win COVID-based compassionate release motions under 18 USC § 3582(c)(1)(A)(i). In the last 6 months, courts have often cited the questionable fact that if you’ve had COVID, you’re less likely to have it again or have it more seriously. What’s more, the judges are holding that being vaccinated reduces the risk to a level where compassionate release is unnecessary.

There’s a good argument to be made now that omicron has kicked the legs out from under both those arguments.

And this might be the last best chance to get a COVID compassionate release. Drugmakers Pfizer and Merck have both sought authorization for a COVID pill, and early tests show Pfizer’s pill cuts hospitalization and death from COVID by 90% and works against omicron.

Act-Now-300pxOnce those pills are approved and generally available – estimated to be about 90 days – it’s quite likely that the COVID compassionate release will be a thing of the past.

Macbeth might advise prisoners, “If it were done when ’tis done, then ’twere well it were done quickly.”

Reuters, Pfizer says COVID-19 pill near 90% protective against hospitalization, death (December 14, 2021)

– Thomas L. Root

Going Back to the Well – Update for September 24, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 8, 2021

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A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

Fascinating District Court Use of Compassionate Release to Correct Sentencing Error – Update for May 21, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE DUE TO SENTENCING ERRORS

There’s a precedential pecking order that few do-it-yourselfer prisoner litigants appreciate.

coffee210521It’s easy… a Supreme Court decision binds every lower federal court in America. A “published” decision of a federal court of appeals (and “published” means the court declares it to be published, not just that you can find a copy of it on the Internet) binds every district court in that particular circuit. But the opinion of a district court only binds the parties to the action. If the Chief Judge of the Federal District Court for the Eastern District of Northern South Dakota rules that red is really green, the judge in the office next to hers is nonetheless entitled to rule the next day in a different case that red is more blue than green.

So district court decisions ultimately are sometimes interesting, sometimes illuminating, occasionally infuriating and usually boring, but whatever they might be, $5.00 and the combined output of the best district court in America will get you a Strawberry Funnel Cake Frappuccino at Starbucks, but little else.

oracle210521That doesn’t stop prisoners, many of whom breathlessly cite opinions from some knuckleheaded district court a thousand miles away like they are the immutable words of the oracle descended from Mt. Olympus.

But while district court decisions are not binding precedent, they can be what lawyers like to call “persuasive authority.” That kind of authority says to a district court, ‘look how smart Judge Elihu Smails held in this similar case, and don’t you want to look as bright as he does?’ Sometimes that kind of persuasion works, sometimes it doesn’t.

With that prologue, we were impressed with a decision handed down last week by a judge in the District of Massachusetts, granting compassionate release to a man doing life for a 1991 bombing that killed one cop and injured another.

The movant had discovered an error many years after his conviction which made the life sentence unlawful. He filed a motion with the District Court back in 2007 pointing out the error, and the sentencing court granted him relief. Unfortunately for the defendant, the First Circuit reversed the district court on procedural grounds, specifically that the prisoner had no right to bring what was in effect a second 28 USC § 2255, so the sentencing error was unreviewable.

The prisoner tried again 13 years with a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i).  The motion turned on the prevalence of COVID-19 at USP Tucson and the 65-year old prisoner’s vulnerability to it, but as well raised arguments that the conviction and sentence were tainted by the government having played on the homophobia of the jury, and the sentencing error that was argued futilely in 2007.

The district court rejected the COVID-19 argument due to the fact that the prisoner had received the vaccine, and it characterized the evidence of innocence and homophobia as “serious but not overwhelming arguments” that “raise questions and perhaps even doubts – but no more.”

But the court was convinced by the sentencing error. It rejected the government’s argument that the First Circuit had already settled the issue:

The First Circuit’s holding was premised upon a strict application of AEDPA… But now Congress has spoken again. And this time it has given trial judges broad authority – indeed it has imposed a statutory duty, upon a defendant’s motion – to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction… Moreover, at the time of this writing, there is a growing consensus among courts that there are few if any limitations on what may be considered an extraordinary and compelling reason warranting release, even those claims that have been rejected on direct appeal or collateral attack.

compassion160208The district court used compassionate release to do what it could not do in a § 2255 motion: it ruled that “it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.”

The court ruled that there was “no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case. Here, the Court is deploying the broad discretion provided in one statute – § 3582(c)(1)(A) – to effectuate Congress’s clearly stated intent in a separate statute, see 18 USC § 34, as incorporated by 18 USC § 844.”

United States v. Trenkler, Case No 92-10369, 2021 U.S. Dist. LEXIS 87567 (D. Mass. May 6, 2021)

– Thomas L. Root

Groundswell for Judicial Discretion in Compassionate Release Cases – Update for April 13, 2021

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TWO MORE CIRCUITS REJECT GUIDELINES § 1B1.13 AS GOVERNING COMPASSIONATE RELEASE

stampede210413Since United States v. Brooker last fall, four other circuits had held that USSG § 1B1.13, the Guidelines policy statement that severely restricts qualification for 18 USC § 3582(c)(1)(A)(i) compassionate release, did not apply to motions brought by inmates.

Last week, the 5th and 9th Circuits joined the stampede, bringing the total to seven.

The Guideline, among other terms, requires movants to show that they will not be a danger to the community or others (applying the standards of 18 USC § 3142(g), the statute governing pretrial release), and limits compassionate release for inmate medical conditions, sick partners, unparented kids. Other reasons may be used as well, but only those approved by the BOP.

It is hard to overstate the importance of the tsunami of holdings invalidating the use of §1B1.13 in compassionate release cases. District courts have cited § 1B1.13 in over 7,200 decisions in the last year. The government continues to argue in pleading that courts should reject compassionate release motions as inconsistent with  § 1B1.13, even where the circuit has held otherwise. Just last week, I read a compassionate release response in which the government reluctantly acknowledged – almost as an afterthought – that the Circuit had held that nothing “in the now-outdated version of Guideline § 1B1.13 limits the court’s discretion,” but only after a full page of arguing the court should apply it anyway.

Francesk Shkambi’s compassionate release was thrown out by a district court for lack of jurisdiction, because Frank didn’t fit into any of the four grounds listed in § 1B1.13. But last week, the 5th Circuit reversed, finding § 1B1.13 inapplicable:

§ 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the First Step Act in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the ‘motion of the Director of the Bureau of Prisons.’ But it does not govern here — on the newly authorized motion of a prisoner… Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

compassion160208Meanwhile, in California, a district court denied Pat Aruda’s compassionate release motion because it was inconsistent with § 1B1.13. Last week, the 9th Circuit reversed.

We agree with the persuasive decisions of our sister circuits and also hold that the current version of USSG § 1B1.13 is not an ‘applicable policy statement’ for 18 USC § 3582(c)(1)(A) motions filed by a defendant,” the Circuit wrote. “In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant. The Sentencing Commission’s statements in USSG § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.

So far, the 2nd, 4th, 5th, 6th, 7th, 9th and 10th have ruled that § 1B1.13 does not control inmate-filed compassionate release motions. No circuit has held otherwise.

United States v. Shkambi, Case No 20-40543, 2021 US App. LEXIS 10053 (5th Cir. Apr 7, 2021)

United States v. Aruda, Case No 20-10245, 2021 US App. LEXIS 10119 (9th Cir. Apr 8, 2021)

– Thomas L. Root

‘Danger, Danger!’ – Courts Grapple With Prisoners’ ‘Danger to the Community’ on Compassionate release – Update for February 11, 2021

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GUESS THEY MEANT WHAT THEY SAID…

saymean161103Part 1: About 80 days ago, the 6th Circuit ruled in United States v. Jones that because the Sentencing Commission – due to having too few members to even hold a meeting – had not been able to amend compassionate release policy statement § 1B1.13, district judges had no obligation to follow the old version of that Sentencing Guideline.

A little background: At the same time Congress enacted the Sentencing Reform Act of 1984, it established the Sentencing Commission. Among the Commission’s duties was a directive in 28 USC § 994(t) that it define in detail what constituted an “extraordinary and compelling reason” for a sentence reduction (what we commonly call compassionate release).

The Commission’s response was policy statement § 1B1.13, which faithfully adhered to the statute by – among other things – directing that a compassionate release could only be requested by the Director of the Federal Bureau of Prisons. After all, that was what 18 USC § 3582(c)(1)(A) said at the time. But in 2018, Congress change the statute in the First Step Act to permit prisoners to bring their own motions for compassionate release if the BOP turned down their request for the agency to do so.. Of course, the BOP turned everyone down: Mother Teresa herself could not have wrangled a compassionate release motion out of the Director.

motherteresa210211Normally, the Sentencing Commission would have amended § 1B1.13 in due course, updating it to reflect that compassionate release motions may be coming from inmates as well as the rare filing by the Director of the BOP. However, the Sentencing Commission was having its own crisis at the time. Three members left the Commission at the end of 2018 when their terms expired, and President Trump had not nominated any replacements. When he finally came up with a few names months later, the Senate never got around to confirming them. As a result, the Commission has lacked a quorum for two years now, and has been able to do absolutely nothing.

Thus, we have a revised compassionate release statute on the books, but an enabling policy statement that is still rooted in the Dark Ages.

That old policy statement set restrictive definitions as to what constitutes “extraordinary and compelling” reasons for a reduction, and said that any reason other than those listed in § 1B1.13 had to be approved by the Director. As well, § 1B1.13 required the judge – among other things – to determine that the prisoner “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).”

That brings you up to date. Now, for today’s case:

Jones described a three-step process for deciding compassionate release motions: First, a prisoner must show extraordinary and compelling reasons for a sentence reduction. If that showing is made, the movant must then show that the motion is consistent with any applicable policy statement issued by the Sentencing Commission. If he or she crosses that hurdle, the prisoner must finally show after considering the sentencing factors of 18 USC § 3553(a), the court ought to grant the motion. Jones’s three-step came with one big asterisk: where prisoners were moving for compassionate release on their own – instead of the motion being brought by the BOP Director – the courts should skip Step Two.

Paul Sherwood filed for compassionate release under 18 USC § 3582(c)(1)(A)(i), claiming that COVID-19, coupled with his age and medical condition, constituted extraordinary and compelling reasons for release. He claimed that the 18 USC § 3553(a) factors also weighed in favor of grant. The government admitted Paul’s medical conditions satisfied the “extraordinary and compelling” threshold, but it argued that his possession of prohibited sex images (read that as “kiddie porn”) meant he “remained a danger to the community, and that the § 3553(a) factors counseled against release.” The district court agreed in a two-line order that Paul “has failed to demonstrate that he is not a danger to the community. Not only was he convicted of possession… but he was convicted of transportation as well.”

pornC160829Last week, the 6th Circuit reversed the district court, telling everyone it meant what it said in Jones: § 1B1.13 is to be ignored. “While a brief order may well be sufficient for purposes of denying compassionate release,” the Circuit wrote, “where the order relies exclusively on an impermissible consideration, we must vacate the order and remand the case for further consideration.” The 6th admitted that the district judge could consider whether Paul had a “propensity to be a danger to the community upon release, as well as the nature and circumstances of his offense,” and it even presumed that “the district court’s initial balancing of the § 3553(a) factors during Paul’s sentencing remains an accurate assessment as to whether those factors justify a sentence reduction…”

In other words, the Circuit telegraphed to the district court that it didn’t expect the outcome to be any different after remand, only the process used to get there.

Despite its expectations, “because the district court relied on § 1B1.13(2) as the sole basis for denying Sherwood compassionate release,” the 6th remanded the so that the district court could decide whether the § 3553(a) factors alone weighed in favor of Sherwood’s release, without considering “danger to the community.”

Part 2: In early December, the 4th Circuit ruled in United States v. McCoy that § 1B1.13 should be ignored, and – additionally – that district courts could even consider disproportionately long sentences as reasons for compassionate release.

danger210211Paul Kratsas has spent nearly three decades in prison for a non-violent drug offense committed in Maryland. He moved for a sentence reduction, arguing that he would not get a mandatory life sentence if convicted today, and that his record of achievement in prison showed rehabilitation. The government, predictably enough, argued that there was nothing extraordinary or compelling in Paul’s showing, and anyway, he had not shown he would not be a danger to the community (even after 30 years in prison).

The district court noted that even under current law, Paul would qualify as a career offender, but “with good time credits, he has already served more than the bottom of those guidelines.” District Judge Deborah K. Chasanow obviously concluded that United States v. McCoy meant what it said. She held:

It is time to recognize that both the law and Mr. Kratsas have changed over the last three decades. His youthful refusal to acknowledge his guilt – or to accept punishment – has given way to reflective maturity. His positive attitude while in prison is demonstrated by the myriad courses, programs, and activities he has completed successfully, earning him transfer to a low security facility and the support of his mentor and family. He has demonstrated that he is not likely to be a danger to society due to his insights into his personal responsibility and the release plan he has offered. He is to be commended for his refusal to lose hope.

Paul went home last Friday… for the first time since 1992.

United States v. Sherwood, Case 20-4085, 2021 U.S. App. LEXIS 2806 (6th Cir., February 2, 2021)

United States v. Kratsas, Case No. DKC 92-208, 2021 U.S. List. LEXIS 13313 (D.Md., January 25, 2021)

– Thomas L. Root

6th Circuit FCI Elkton Holding a Mixed Bag – Update for June 11, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE WINS AND A LOSS AT THE 6TH CIRCUIT

winloss200611On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio) habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.

Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.

plague200406In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.

“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”

Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”

habeasB191211Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241 habeas corpus petition.

Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.

Finally, the Court held that

“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”

tryhard200611This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.

That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.

Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)

– Thomas L. Root

Unjust Sentence is an “Extraordinary and Compelling” Reason for Sentence Reduction, District Court Says – Update for November 18, 2019

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DISTRICT COURT GRANTS SENTENCE REDUCTION BECAUSE OF “INJUSTICE” OF ORIGINAL SENTENCE

Since the First Step Act passed 11 months ago, a number of observers (me included) have predicted that changes in the 18 USC § 3582(c)(1)(A)(i) sentence reduction procedures that let a defendant petition the district court directly if the Bureau of Prisons failed to do so could be the most consequential provision in the new law.

Sentencestack170404Last week, a district court in Nebraska granted a sentence reduction filed by a defendant whose whopping 895-month sentence for drug trafficking and three stacked 18 USC § 924(c) counts. As you recall,  § 924(c) conviction adds a consecutive sentence of at least five years for using or carrying a gun during a drug or violent crime, increasing to a minimum 25 years for a subsequent offense. Due to poor draftsmanship, the statute has been applied so that if a defendant sold pot while carrying a gun on Monday, did it again on Tuesday and again on Wednesday, and then was caught, he or she would face maybe 41 months or so for the pot sales, but a mandatory additional time of five year, 25 years and 25 years, for a whopping 58 years plus in prison. The First Step Act clarified the statute, so that the 25 year subsequent 924(c) offense had to be committed after conviction for a prior offense.

However, to appease the Sen. Tom Cottons (R-Arkansas) of the world, the First Step change was not retroactive. That left a lot of people stranded with unconscionable sentences. People like Jerry Urkevich.

The government opposed Jerry’s sentence reduction motion, arguing that just because he could not have gotten more than 368 months after First Step passed does not make his sentence reduction motion argument “extraordinary and compelling” (as required by the statute). Furthermore, the government argued, even if the defendant’s sentence were cut, he would still have about half of it to serve, making his motion “premature.”

extraordinary191118The court rejected the government’s arguments, noting that the list of “extraordinary and compelling reasons” in Guideline 1B1.13 Note 1 that justify a sentence reduction is not exclusive. Instead, there is a catch-all provision providing that there can be an “extraordinary and compelling reason” other than medical, age or family. That, the judge said, allows a court to consider § 3553(a) factors, as well as criteria in the Sentencing Commission’s policy statement.

Although the Sentencing Commission has not amended 1B1.13 since First Step passed, the court said it “infers that the Commission would apply the same criteria, including the catch-all provision… and that this Court may use Application Note 1(D) as a basis for finding extraordinary and compelling reasons to reduce a sentence.” Here, the court said, a reduction in sentence was warranted by “the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.”

The court also rejected the government’s strange and unsupported argument that a sentence reduction cannot be granted unless it results in immediate release. “If this Court reduces the defendant’s sentences on [two 924(c) counts] to 60 months each, consecutive,” the judge wrote, “he will not be eligible for immediate release. His sentence would total 368 months, and he would have served somewhat more than half that sentence. Nonetheless, the Court does not consider the Motion premature. A reduction in the sentence at this juncture will help the defendant and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.”

In his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wrote, “I have made much of a key provision of the First Step Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 USC § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons. I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)”

While not precisely a matter of § 3582(c) sentence reduction, the Washington Post reported last week that hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off plans to resume federal executions next month.

death170602The letters, signed by current and former officials across the justice system as well as 175 relatives of murder victims, plead with President Trump and Attorney General William P. Barr to stop the executions, which Barr announced last summer that the Trump administration would resume on Dec. 9. The Justice Dept. said five executions were scheduled in the next two months and that more would follow.

Victims’ relatives — the largest single group to sign the letters — denounced the death penalty process as wasteful and something that only extends their grieving. “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write. “On all these measures, the death penalty fails.”

United States v. Urkevich, 2019 U.S. Dist. LEXIS 197408 (D.Neb. Nov. 14, 2019)

Sentencing Law and Policy, Another District Court finds statutory sentence reform among “extraordinary and compelling reasons” for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A) (Nov. 16)

Washington Post, Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions (Nov. 12)

– Thomas L. Root