There is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.
Over the weekend, I posted both a law review article (entitled Second Looks & Second chances that will be published by Cardozo Law Review) and a sample brief (that will form the basis of challenging Adam Clausen’s ridiculous 213-year federal sentence). Both discuss the reasons why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly. See 18 U.S.C. § 3582(c)(1)(A).
In my article, I explain that there is a long history of second look provisions in American law, and why second look provisions are normatively desirable. More importantly, the text and history of Section 3582(c) supports the view that, when Congress first enacted the compassionate release statute in 1984, it intended compassionate release to act as a second look provision to take the place of federal parole, which Congress was abolishing. The problem was that Congress gave the power to trigger a sentence reduction under the compassionate release statute to the Director of the Federal Bureau of Prisons (“BOP”).
Leaving the BOP Director with ultimate authority to trigger and set the criteria for compassionate release sentence reductions created several problems. The Office of the Inspector General found that, among many other problems, the BOP failed to provide adequate guidance to staff regarding the criteria for compassionate release and that BOP had no timeliness standards for reviewing such requests. As a result of these problems and others, the OIG concluded that: “BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”
Congress heard the complaints. Congress passed, and President Trump signed, the First Step Act of 2018, which, among other things, changed the procedures and ultimately the criteria for when a person in federal prison can seek a sentence reduction under the compassionate release statute in 18 U.S.C. § 3582(c)(1)(A)(i). After the changes made by First Step, federal prisoners can file a motion for a sentence reduction, and federal district courts are authorized to reduce a sentence even if the BOP fails to respond or even in the face of BOP opposition to a sentence reduction.
Under the First Step Act, Congress took the power that previously resided with the BOP Director to trigger and set the criteria for sentence reductions and transferred it to Article III courts—where it should be.
I will have more to say in future blog posts over the coming days.
The article is still a work in progress, so I welcome any comments on it or the sample brief. Please send comments to me at: [email protected].
P.S. There were a number of people who have reviewed drafts and provided invaluable comments on the article and the legal argument for expanded use of compassionate release. But I want to highlight one of them: Ohio State Professor Douglas Berman not only helped me refine the legal argument, but he is also a consistent source of encouragement. I used to read Doug’s Sentencing Law and Policy blog while I was in federal prison; it is blessing to be able to work on issues related to federal sentencing with him outside of prison. Thank you, Doug!