Urging the Justice Department to respect the US Sentencing Commission’s new guidelines for compassionate release
When Congress enacted the Sentencing Reform Act (SRA) in 1984, it created the notable 18 USC § 3582(c)(1)(A) provision authorizing a judge, upon a finding of “extraordinary and compelling reasons,” to reduce a term of imprisonment. The SRA further provided that the US Sentencing Commission was to set out policy statements describing what judges should consider extraordinary and compelling reasons. Specifically, 28 USC § 994(t) states:
The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.
I read this provision to mean that Congress sought to make the Commission the primary expositor of what factors “should be considered extraordinary and compelling reasons for sentence reduction.” And the Commission earlier this year promulgated new amendments to its “compassionate release” policy statement. As blogged here and here, one key provision concerned the authority of judges to sometimes consider “changes in the law” as a basis to satisfy the statutory requirement of finding “extraordinary and compelling reason” for a sentence reduction. See proposed USSG § 1B1.13(b)(6).
I have heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new guideline once it become effective on November 1. And that serves as the backstory for this new USA Today piece authored Erica Zunkel and Nathaniel Berry. I recommend the piece in full, which is headlined “First Step Act advanced prison reform, but hundreds are still serving unjust sentences; New Sentencing Commission guidelines will give them a chance for compassionate release. But DOJ threatens to stand in the way.” Here are excerpts:
Under new guidance from the U.S. Sentencing Commission, the agency responsible for setting federal sentencing policy, individuals like Walker can now ask judges to reduce their “unusually long sentences.” The underlying legal basis is a law passed by Congress in 1984 — informally known as “compassionate release” — that permits judges to reduce a sentence when an individual can show an “extraordinary and compelling” reason for doing so.
The Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around.
Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain. The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.
With the Sentencing Commission’s new guidance soon to be in effect and binding on federal judges, the DOJ and Attorney General Merrick Garland must decide whether they will support the commission — or whether they will fight to keep people such as Walker behind bars.
We urge AG Garland to follow the commission’s example and allow compassionate release to “rekindle” “the light of redemption (that) has almost been extinguished from our federal prisons,” as Commission Chair Judge Carlton W. Reeves explained when announcing the new sentencing guidelines….
The commission’s “unusually long sentences” provision is good policy. Far from a get-out-of-jail free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary.
The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a “gross disparity” between their sentence and the one likely to be imposed today. Even then, an individual still must demonstrate that they will not pose a danger to the community, and that their individualized circumstances weigh in favor of a sentence reduction….
We celebrate the Sentencing Commission for giving them that chance and urge the DOJ not to stand in the way when individuals like Walker take it.