Tag Archives: compassionate release

First, Do Something Futile… And Do It Well – Update for February 19, 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.

COMPLETENESS COUNTS IN COMPASSIONATE RELEASE REQUEST TO WARDEN

compassionate200928Cory Williams wanted to file for compassionate release based on what he alleged was misconduct by his trial judge. So he dutifully asked his warden to bring the motion, as required by the administrative exhaustion requirement of 18 USC § 3582(c)(1)(A)(i). The BOP refused, of course (as it always does), so Cory himself filed a compassionate release motion with the federal court that had originally sentenced him.

Early on in the COVID-19 pandemic, a number of federal courts adopted standing orders that all inmates filing their own compassionate release motions would have counsel appointed to assist them. Cory’s court was one of those. The court appointed counsel to represent Cory. As we all know, counsel knows best (probably true in this case, where a defendant was essentially asking a judge to acknowledge his own misconduct was so bad that a defendant should be freed from prison). Counsel wisely scrapped Cory’s “I-should-go-home,-Your-Honor,-because-you’re-a-bum” argument, and filed an amended compassionate release motion that sought Cory’s based solely on COVID-19.

The government argued Cory had not exhausted his remedies with the BOP, because he had not raised his susceptibility to COVID-19 to the warden as a reason for compassionate release. Last week, the 7th Circuit agreed with the government.

“We have not yet had occasion to consider whether, in order properly to exhaust, an inmate is required to present the same or similar ground for compassionate release in a request to the Bureau as in a motion to the court,” the Circuit ruled. “But now that the issue is squarely before us, we confirm that this is the rule — any contrary approach would undermine the purpose of exhaustion.”

negativezero210219“The purpose of exhaustion…” That’s like saying the purpose of taking your kid to see Santa Claus at the Mall is to be sure he brings her the right toys on Christmas morning. Between March and December 2020, the BOP only granted 11 out of 10,940 inmate requests (that’s 0.001005484%, for you math fans). Let’s round that to about one out of 1,000 requests.

The § 3582(c)(1)(A)(i) exhaustion requirement seems like so much Kabuki theater. No matter. A request to the warden is the price of admission, and that request should clearly state the grounds the inmate intend to use when he or she petitions the court without the BOP’s help, as invariably is the case.

United States v. Williams, Case No 20-2404, 2021 USApp LEXIS 3762 (7th Cir. Feb. 10, 2021)

– Thomas L. Root

Some Guys With Clout Propose Sentence Reform – Update for February 18, 2021

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THE ODD COUPLE ARE BACK… WITH A WELCOME BILL

Senate Judiciary Committee chairman Richard Durbin (D-Illinois) and Sen Chuck Grassley (R-Iowa), Ranking Republican on the Committee are a political odd couple if ever there was one. Liberal lion Durbin from uber-Democrat Illinois and an octogenarian raised-on-the-farm Republican seem to have nothing in common, but…

oddcouple210219But they are the duo who brought you the First Step Act, and last week they jointly introduced a bill to reform the Elderly Home Detention and compassionate release programs.

elderly180517The Elderly Offender program lets old folks (age 60 and above, so that includes your correspondent) – non-violent criminals whose continued incarceration cost the Bureau of Prison so much in medical expenses – serve the last third of their sentences on home confinement (where they pay for their room, board and medical, not Uncle Sam). That seems like a sweet deal for them and for the government. 

But trust the Bureau to manage to screw up a one-car parade. The BOP decided that two-thirds of the sentence meant two-thirds of the whole sentence, not for the good-time adjusted sentence that everyone ends up serving.  So an aged fraudster with a 100-month sentence – who will serve 85 months with good conduct time figured in – doesn’t get home confinement starting at 66.7% of 85 months, but instead must serve 66.7% of 100 months before he goes to home detention.

That’s not what Congress ever meant, as the House explained to the BOP last year in the HEROES Act (H.R.6800), which modified the statute to say as much). But HEROES never got a vote in the Senate.

elderly190109Now, Durbin’s and Grassley’s COVID-19 Safer Detention Act would clarify that the amount of time an inmate must serve to qualify for Elderly Home Detention should be calculated based on his or her 85% date, not the gross sentence. Additionally, the bill would reduce the minimum sentence for Elderly Home Detention from 66% to 50%, and give inmates who are denied Elderly Home Detention the right of judicial review.

The bill also proposes providing that COVID-19 vulnerability is a legitimate basis for compassionate release, and shortening the period prisoners must wait after submitting requests to the BOP to file with their courts from 30 to 10 days.

Three Republican and three Democrats have joined in sponsoring the bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog, “Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward.”

Press release, Durbin, Grassley Introduce Bipartisan Legislation to Reform Elderly Home Detention and Compassionate Release Amid COVID-19 Pandemic (February 10, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “COVID-19 Safer Detention Act” (February 11, 2021)

– Thomas L. Root

Compassionate Release Only Breaks Even in Two Appeals Decisions Last Week – Update for January 11, 2021

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A TALE OF TWO COVID DECISIONS

Two circuits handed down decisions on COVID compassionate release last week. Like Charles Dickens’ “best of times, worst of times,” the rulings represented the best in appellate decision-making and the worst.

tutorial210111The Tutorial: Section 3582 of Title 18, United States Code, governs the imposition of sentences, including regulating the limited circumstances under which a sentence can be modified. Once such circumstance is found in § 3582(c)(1)(A)(i), which provides that a court may reduce a sentence when it finds “extraordinary and compelling” reasons to do so, and concludes that such a reduction is consistent with the factors to be considered when a sentence is imposed (found in 18 USC § 3553(a), and generally called “3553(a) factors“).

Since the advent of COVID-19, courts have granted sentence reduction motions (also called “compassionate release” motions, the same way all tissues are called “Kleenex”) in cases where the prisoner has health conditions that increase his or her susceptibility to COVID-19. The approval rate has been something like 19% of all compassionate release motions, but in a criminal justice system in which 97 out of 100 people charged with a federal crime get convicted, the compassionate release odds seem to a lot of inmates to be a sure thing.

One fly in the ointment has been a § 3582(c)(1)(A)(i) requirement that a compassionate release comply with “applicable” Sentencing Commission policies. The only Sentencing Commission policy has not been updated since before the First Step Act (which is what have inmates the right to file their own compassionate release motions), and the policy contains limitations clearly at odds with the intent of Congress in opening up compassionate release to inmates. As a result, four courts of appeal so far have ruled that district courts need pay no mind to the “applicable policies” language of § 3582(c)(1)(A)(i), at least until the Sentencing Commission gets around to changing the policy.

Now for the two decisions of the week:

best210111The Best: A district court found Lisa Elias’s hypertension (high blood pressure) alone was not an extraordinary and compelling reason to grant a sentence reduction. The 6th Circuit last week upheld the denial, underscoring the broad discretion district judges have in deciding compassionate release cases with thoroughness and careful reasoning.

Noting that three other circuits now agreed with its Jones decision that Guideline 1B1.13 does not limit courts in deciding prisoner-brought compassionate release motions, the 6th said “there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions. Further… district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others… And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling”’ on their own initiative.”

worst210111Now the worst: Chadwick Townsend sought compassionate release because, he claimed, his hypertension, high cholesterol and a 10-year old stroke put him at higher risk from COVID-19. His district judge held Chad’s reasons were not extraordinary and compelling, and Tom appealed.

The 5th Circuit turned him down. It held that while Chad’s “chronic illnesses place him at a higher risk of severe symptoms, should he contract COVID… it is uncertain that he is at a significantly higher risk than is the general inmate population. In fact, nearly half of the adult population in the United States suffers from hypertension. And roughly 12% of Americans suffer from high cholesterol. Thus, we cannot say that either of those conditions makes Thompson’s case “extraordinary.” Unfortunately, both are commonplace.”

The Circuit relied on Guideline 1B1.13 without observing that four other circuits have held it does not apply to inmate-filed compassionate release motions. Acting as though it had just emerged from a cave where it spent the last year, the panel noted with some surprise and puzzlement, “To be sure, courts around the country, in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID. Even where they have denied release, some courts have assumed that the pandemic, combined with underlying conditions, might be an extraordinary and compelling reason for compassionate release. But that is certainly not a unanimous approach to every high-risk inmate with preexisting conditions seeking compassionate release.”

The Circuit seemed to conflate “extraordinary and compelling” reasons with the separate compassionate release step of considering the 18 USC § 3553(a) sentencing factors: “The courts that granted compassionate release on those bases largely have done so for defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns. Even where the court denied the motion on grounds other than the lack of ‘extraordinary and compelling reasons,’ the defendants’ medical conditions oftentimes were more serious than are Thompson’s. Fear of COVID doesn’t automatically entitle a prisoner to release. Tom can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence.”

Sentencing Law and Policy, Sixth Circuit panel reiterates “district courts have discretion to define ‘extraordinary and compelling’ on their own initiative” for 3582(c)(1)(A) motions (January 7, 2021)

United States v. Elias, Case No. 20-3654, 2021 U.S. App. LEXIS 251 (6th Cir. January 6, 2021)

United States v. Thompson, Case No. 20-40381, 2021 U.S. App. LEXIS 194 (5th Cir. January 5, 2021)

– Thomas L. Root

For The Want of a Nail… – Update for December 15, 2020

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COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 2020

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BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

BOPCOVID201208jpg

Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 2020

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THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “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 [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Two More Circuits Ease Compassionate Release Requirements – Update for November 23, 2020

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6TH AND 7TH CIRCUITS FOLLOW BROOKER; CLARIFY COMPASSIONATE RELEASE

If there has been any silver lining to the COVID-19 pandemic at all – and reasonable people can easily argue that there has not been – it might be the explosion in compassionate release motions brought by federal prisoners.

compassionate200928
As I have said before, 18 USC § 3582(c)(1)(A)(i) – which permits federal judges to reduce otherwise-final sentences when “extraordinary and compelling” reasons for doing so exist – has been a “sleeper” for three decades. Until 2018, the “catch” in this sentence reduction subsection that made it such a snoozer was the requirement that only the director of the Bureau of Prisons could bring a motion under the subsection. The Director, of course, is a bureaucrat who would not have petitioned to have his or her own mother released from federal stir.

By the way, nowhere in the statute is the motion called a “compassionate release” motion. Nevertheless, the sentence release motion has been dubbed as such by the BOP, to the point that the terms “compassionate release” and “sentence reduction” are freely interchangeable.

Prior to 2018, the number of occasions on which the BOP asked a court to release an inmate early made blue moons seem like a nightly event by comparison. Congress, tired of the BOP’s nonfeasance in using the sentence-reduction subsection, modified § 3582(c)(1)(A)(i) in the First Step Act, so that now – after paying lip service to the BOP’s former role by asking the Director to bring a sentence reduction motion no one seriously believes the BOP will bring – an inmate may file the motion directly.

Sentence reduction business picked up after First Step’s passage 23 months ago, but it took the pandemic to start the land rush. Somewhere around 4,000 sentence reduction motions claiming that COVID-19’s risk to medically-vulnerable inmates have been filed in the last eight months.

But with no history of sentence reduction adjudication, there has been blessed little judicial guidance as to how a court is to analyze such a motion, the application of the Sentencing Guidelines to sentence reduction motions, and how much detail is demanded in a decision denying such a motion. These are matters of more than academic interest.

According to 18 USC § 3582(c)(1)(A)(i), a sentence reduction motion must show the existence of extraordinary and compelling reasons for the reduction and that the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” In deciding the motion, the statute directs, the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

details170803As is usually the case, the devil’s in the details. Lack of definitive appeals court decisions on what the subsection requires a district court to do has led to dreadfully inconsistent results, with conditions that were extraordinary and compelling to one judge are ho-hum to another. Some judges hold that the outdated Sentencing Commission guidance (it has not been changed to account for the First Step Act, because the Sentencing Commission has lacked a quorum since December 2018) must be followed, regardless of the nonsensical result such guidance dictates. And while many judges provide detail in opinions denying sentence reduction motion, others reject them with one-sentence orders that rob appeal courts of the ability to figure out the basis for the denial.

Finally, we are beginning to get appellate guidance on how district courts should decide 18 USC § 3582(c)(1)(A) petitions. In late September, the 2nd Circuit handed down United States v. Brooker, holding that the limitations of Sentencing Guideline 1B1.13 simply do not apply to sentence reduction motions brought by prisoners rather than the BOP. Last Friday, the 6th and 7th Circuits added materially to the body of law guiding decision-making on sentence reduction motions.

The 7th Circuit decision was a simple one. Tequila Gunn moved for compassionate release, arguing that because her medical condition made her more susceptible to the coronavirus, her sentence should be reduced to time served. The district court denied the motion, because the BOP Director had not determined her condition to be an “extraordinary and compelling” reason for sentence reduction, as required by USSG § 1B1.13.

This was the conundrum: 18 USC § 3582(c)(1)(A) only permits sentence reductions “consistent with applicable policy statements issued by the Sentencing Commission,” and that statement requires that the “extraordinary and compelling” reasons have to be determined by the BOP and no one else. That requirement is still in the Guidelines, the Circuit said, “because the Sentencing Commission has not updated its policy statements to implement the First Step Act. (It can’t, because it lacks a quorum.)”

negativezero201123The 2nd Circuit solved that problem two months ago in Brooker, ruling that § 1B1.13 simply does not and cannot apply to a sentence reduction motion filed by someone other than the BOP Director. The statute says a sentence reduction must be “consistent with” all “applicable” policy statements. The 7th notes that any decision is “‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by’.” Therefore, judges are free to define for themselves what constitutes an “extraordinary and compelling” reason for reduction.

Meanwhile, the 6th Circuit issued a decision last Friday that is comprehensive in its instruction. Not only does the decision follow Brooker – holding that “the passage of the First Step Act rendered 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release” – it provides a template for deciding such cases and outlines the detail expected of judges in sentence reduction decisions.

The 6th held that “compassionate release hearings are sentence-modification proceedings that must follow a Dillon-style test. At step one, a court must find whether “extraordinary and compelling reasons warrant” a sentence reduction… At step two, a court must find whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)[(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.”

denied190109Finally, the 6th made clear that judges ruling on sentence reduction motions must “write more extensively in § 3582(c)(1)(A) decisions where the record bears little indication that the district judge considered all the defendant’s evidence and arguments before granting or denying compassionate release,” the Circuit said. “Absent thorough record evidence of the judge’s factual decisions, district courts should not issue single-sentence or otherwise exceedingly slim compassionate release decisions or cite § 1B1.13 or the § 3553(a) factors without any analysis of their requirements,” the appellate court said. “But as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court… a district judge need not specifically articulate” its analysis of every single 3553(a) factor. Again, we look at what the judge stated about the 3553(a) factors in both the initial sentencing and the sentencing-modification proceedings when determining whether the judge satisfied her obligation to explain.”

The 7th Circuit Gunn decision is welcome for its concurrence with Brooker. The 6th Circuit Jones decision is even better, the most comprehensive opinion on application of the sentence reduction statute to date,

United States v. Jones, Case No 20-3701, 2020 US App. LEXIS 36620 (6th Cir. November 20, 2020)

United States v. Gunn, Case No 20-1959, 2020 US App. LEXIS 36612 (7th Cir. November 20, 2020)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 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.

A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root

BOP Compassionate Release Approval – Vegas Without Comp’d Drinks – Update for October 13, 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.

THE DEFINITION OF FUTILITY

futile201012People seeking compassionate release know that 18 USC § 3582(c)(1)(A) requires that they exhaust administrative remedies first, that is, ask the warden of their facility to recommend that the BOP bring the motion on their behalf and then wait 30 days before filing.

Many prisoners have asked courts to waive the exhaustion requirement as being futile. Courts have uniformly refused, ruling – like the 6th Circuit did last June in United States v. Alam, that the exhaustion requirement “ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist. These are not interests we should lightly dismiss or re-prioritize.”

The courts’ confidence in the Bureau of Prisons would be laughable if the stakes were not so high. And a report last week from NBC and The Marshall Project underscores what attorneys, inmates, advocates and experts have long suspected: since March 1, wardens have denied or ignored over 98% of all compassionate release requests.

Of the 10,940 federal prisoners who applied for compassionate release in just the first two months of the pandemic, from March through May, wardens approved 1.4%, or 156. Some wardens, including those at Seagoville and Oakdale, did not respond to any request during those two months, while others deny every request presented to them. Of the 156 approved by wardens, only 11 were approved by the Central Office. Overall approval rate? One-tenth of one percent.

Here’s the breakdown: 84.8% of the requests were denied by wardens. Another 13.7% were not even answered.

Lose200615In other words, you have literally a one-in-a-thousand chance that the BOP will approve a compassionate release request. This is about the same as an inmate’s chance of dying from COVID-19 (0.09%). On the other hand, 16,000 people have received compassionate release (slightly more than 1% of the BOP population).

Notable pullouts from the data: At Elkton, an early COVID hot spot (with more than 900 cases and nine deaths), the warden denied 866 out of 867 requests for compassionate release. At FCI Terminal Island, 694 prisoners had tested positive by the end of May, the warden approved five of the 256 compassionate release requests filed between March and May.

A BOP spokesman told The Marshall Project that “we can share that the BOP has continued to process compassionate release requests as directed by the First Step Act and agency policy.”

United States v. Alam, 960 F.3d 831 (6th Cir. 2020)

NBC News/The Marshall Project, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied. (October 7, 2020)

Rochester, Minnesota, Post-Bulletin, Cases Continue in Federal Prison, Compassionate Release Hard to Get (Oct 9)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 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.

2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “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 the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[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). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root