Before beginning this article, here is a quick note from Dale Chappell and our friends at Criminal Legal News in regards to the re-printing of this article:

"CLN asked me today if they had my permission to give you the CLN-edited version of the comp release article I sent to you. I said I would be honored if you wanted to use it. Hope it helps.

This article originally appeared in the September 2020 issue of Criminal Legal News.  It is reprinted with permission.  Copyright, 2020 Criminal Legal News."

Who would have predicted that the courts would expand compassionate release to allow non-medical reasons for reducing a sentence, including the chance to fix unfair sentences when no other avenue exists? Now that prisoners can file their own compassionate release motions, instead of waiting for the Bureau of Prisons ("BOP") to do so, courts are citing "fundamental fairness" concerns to right all kinds of wrongs under compassionate release it couldn't do before the First Step Act of 2018 opened the door for prisoners to file their own motions.

Compassionate Release: It's Not Up to the BOP Anymore

It used to be that only the BOP could file a compassionate release motion, and you had to be on your death bed. Literally. Even then, you had a better chance of being struck by lightning and attacked by a shark on the same day. I don't know what the statistics are for such an event, but I think it's probably close to what your odds were for getting compassionate release under the old law.

People were actually dying while the BOP denied compassionate release requests and dragged its feet on others. And Congress noticed. Under the First Step Act, Congress pushed the BOP out of the way to allow prisoners to file their own motions, if the BOP refused to or ignored their requests. It's the first substantive change to the compassionate release statute in decades, and it's been a game-changer.

Under 18 U.S.C. s. 3582(c)(1)(A), the so-called "compassionate release" statute, the director of the BOP used to be the gatekeeper for compassionate release motions: A court could not reduce a prisoner's sentence to allow compassionate release, except "upon motion of the Director of the [BOP]." The First Step Act eliminated this exclusive power to the BOP by adding the words "or upon motion of the defendant" after that. As one court put it, "Defendants no longer need the blessing of the BOP to bring such motions." The court also clarified that once a prisoner files a compassionate release motion in the sentencing court, the BOP "may never weigh in or provide guidance" on that whether that motion should be granted or denied. See U.S. v. Haynes, 2020 U.S. Dist. LEXIS 71021 (E.D.N.Y. Apr. 22, 2020).

Several courts have recognized that the amended s. 3582(c)(1)(A) "vests courts with independent discretion" to grant compassionate release. See U.S. v. Hope, 2020 U.S. Dist. LEXIS 85395 (S.D. Fla. Apr. 10, 2020). In fact, "the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion." U.S. v. Brown, 411 F.Supp.3d 446 (S.D. Iowa 2019).

And why did Congress take the sole power from the BOP and give some to prisoners? Because the BOP blatantly refused to use its power to file compassionate release motions. In 2013, the Office of the Inspector General ("OIG"), responsible for investigating bad behavior by government agencies, filed a report showing that over a six-year period, the BOP filed exactly zero compassionate release motions for non-medical reason, and just 24 for medical reasons. That's out of 220,000 prisoners in its custody at the time. When the OIG told the BOP to step it up, it only approved 83 compassionate release requests the next year. See U.S. v. Ebbers, 2020 U.S. Dist. LEXIS 3746 (E.D.N.Y. Jan. 8, 2020) (explaining the findings of the OIG report).

Extraordinary and Compelling Reasons: Not Just for Illnesses Anymore

While s. 3582(c)(1)(A) says that the court can reduce a sentence for "extraordinary and compelling reasons," it doesn't say what that means. Instead, it points to U.S.S.G. s. 1B1.13 under the sentencing guidelines to define what criteria for compassionate release meet that definition. The problem is that s. 1B1.13 was last updated before the First Step Act, and it still says that only the BOP can file a motion, which mainly focuses on medical reasons, just like the BOP's policy says.

This contradiction has divided the courts on whether s. 1B1.13 is still relevant for defining "extraordinary and compelling" under s. 3582(c)(1)(A). See U.S. V. Fox, 2019 U.S. Dist. LEXIS 115388 (D. Me. July 11, 2019) (collecting cases on the split among the courts). For example, in U.S. v. Cantu, 423 F.Supp.3d 345 (S.D. Tex. 2019), the court found that s. 1B1.13 "clearly contradicts" the news. 3582(c)(1)(A) amendments under the First Step Act, and that because Congress changed the statute to expand the use of compassionate release, the guideline "no longer fits with the statute and thus does not comply with the congressional mandate." See also Haynes, supra (noting "at least twelve other federal district courts" have held s. 1B1.13 inapplicable under amended s. 3582(c)(1)(A)).

Besides all of that, Haynes pointed out that "the district courts have always had the discretion to determine what counts as compelling and extraordinary" for compassionate release. The courts have never been a "rubber stamp" for the BOP on compassionate release, the court said. Indeed, the First Step Act's "key change" was "the removal of the [BOP] Director's role as a gatekeeper."

In U.S. v. Millan, 2020 U.S. Dist. LEXIS 59955 (S.D.N.Y. Apr. 6, 2020), Judge Loretta A. Preska cited a host of reasons that were "extraordinary and compelling" to grant compassionate release. This included that Millan was "unconditionally rehabilitated" after taking dozens of BOP programs, was remorseful, was a "model inmate," was a "leader of the religious community" in prison, and worked with at-risk youth. Do you see any medical reasons in there? There weren't any cited by the judge, yet she granted Millan compassionate release to fix an unfair sentence.

One thing that still stands, however, is that the court must assess the factors under 18 U.S.C. s. 3553(a) when reducing a sentence, even for compassionate release. These include (1) the seriousness of the offense; (2) a person's personal history and characteristics; (3) the need for the sentence to reflect the seriousness of the offense; (4) the need to promote deterrence; (5) the need to protect the public from further crimes by the person [this is the big one the government pounds on]; (6) the need to provide rehabilitation to the person; (7) the applicable guidelines range; and (8) the need to avoid unwarranted sentencing disparities among defendants with similar crimes and records. All of this must also consider that the sentence imposed must not be greater than necessary to achieve the purposes of sentencing.

The court also has broad discretion on whether to grant compassionate release. See U.S. v. Chambliss, 948 F.3d 691 (5th Cir. 2020) (establishing the standard for when a court abuses its discretion in granting or denying compassionate release). This means that all of your prison conduct -- both good and bad -- comes into play.

What the Courts are Doing with Non-Medical Compassionate Release

Somewhat surprisingly, the courts have used compassionate release to fix unfair sentences and for other relief where no avenue previously existed. Mandatory life sentences for drug offenders and stacked s. 924(c) sentences have been overturned under compassionate release, where the courts didn't have the authority earlier to do so any other way.

Mandatory "Life" Drug Sentences

Under the old "war on drugs" era, Congress gave the government full authority to require a court to sentence repeat drug offenders to life in prison without parole, even if their prior convictions were for mere possession. And the court had no say whatsoever -- if the government chose to request such a sentence. While this was harshly criticized by judges across the board, prosecutors successfully convinced Congress that it needed these unfair mandatory sentences to threaten drug offenders into pleading guilty and cooperating with the government. Congress, until now, let the government have its way.

The First Step Act, however, changed some of this by reducing the sentence for those with two prior convictions from life to a minimum of 25 years, and by changing the definition of a qualifying prior conviction to match the Armed Career Criminal Act's "serious drug offense" requirement -- which excludes mere possession priors. See 21 U.S.C. s. 851; 18 U.S.C. s. 924(e)(2)(A)(ii). The mandatory minimum sentence for those offenses with only one drug prior was also substantively changed.

With compassionate release, the courts have found the authority to go back and change those s. 851 sentences it didn't want to impose in the first place but had no choice. In Hope, noted above, Judge Kathleen M. Williams used compassionate release to reduce a life s. 851 sentence imposed 30 years ago to "time served." She cited numerous cases where courts have used compassionate release to reduce sentences under unfair sentencing laws, and that if Hope were to be sentenced today, he would've faced less time than he's already served. Judge Williams rejected the government's argument that Hope didn't have any health issues, that his federal drug offense didn't involved crack cocaine (which was the only drug offense change the First Step Act made retroactive), and that the First Step Act's changes to s. 851 weren't made retroactive by Congress.

"District courts around the country have recognized that defendants are entitled to relief under the First Step Act for 'extraordinary and compelling reasons" including the sentencing disparities occasioned by promulgation of the Act," she said. "Other courts have found that sentencing disparities like that presented in Mr. Hope's case, coupled with a demonstration of profound rehabilitation, constitutes 'extraordinary and compelling' circumstances sufficient to warrant a sentence reduction."

Judge Williams was not alone in using compassionate release to reduce old draconian s. 851 life sentences. See, e.g., U.S. v. Mondaca, 2020 U.S. Dist. LEXIS 37483 (S.D. Cal. Mar. 3, 2020) (Judge Dana Sabraw granting relief).

Stacked s. 924(c) Sentences

Getting quite a lot of attention under non-medical compassionate release have been the "stacked" s. 924(c) sentences, where the government would pile on s. 924(c) charges that would mandate what amounted to a life sentence in order to coerce someone into pleading guilty. Before the First Step Act, any subsequent conviction under s. 924(c) after a first required a 25-year mandatory consecutive sentence for each conviction. So, if the government threatened to file more s. 924(c) charges on top of the current charges if someone rejected its plea offer, it was legally allowed to do so.

Judges have complained about this for years, calling it unfair because it tied their hands and required unreasonably long sentences for questionably unconstitutional (and at least unethical) practices by the government. Under the First Step Act, Congress changed s. 924(c) to require that such a conviction must be "final" before a subsequent conviction can require a consecutive sentence. This mostly wiped out the government's ability to stack s. 924(c) sentences. See First Step Act, s. 403(a).

In Haynes, mentioned above, the court called the government out on how it penalized Haynes for rejecting a plea offer and going to trial. Haynes was charged with several bank robberies in the early 1990s and charged with just one "use of a firearm" count under s. 924(c). The government made an offer of around 8 years if he pled guilty, which included just 3 years for a single bank robbery charge and 5 years consecutive for the s. 924(c) charge. The government threatened in its offer: "If the defendant fails to [take the offer], the government will seek to obtain a superseding indictment charging the appropriate additional counts under 18 U.S.C. s. 924(c)." The government made good on its threat when Haynes went to trial.

The First Step Act took this power away from the government, but didn't make the changes retroactive. Still, Judge Dearie granted Haynes' compassionate release motion. First, he cited that Haynes' codefendant, who took a deal and then got out and robbed another bank, would complete his second sentence long before Haynes even completed his. He also cited that Haynes' stacked s. 924(c) sentence was longer than the average sentences for murder, child pornography, extortion, and terrorist-related offenses -- all combined.

The court also noted that Congress said its intention under the First Step Act was "clarification of s. 924(c)," which was a "clear message" that Congress never intended that the brutal sentence [Haynes] is serving be imposed." Nonretroactivity of the s. 924(c) changes, the court said, "simply establishes that a defendant sentenced before the [First Step Act] is not automatically entitled to resentencing." It wouldn't be unreasonable for Congress to expect a court could grant relief to stacked s. 924(c) sentences "on a case-by-case basis," the court concluded.

As for the "extraordinary and compelling reasons," the court said that the First Step Act's "elimination of the s. 924(c) sentencing weaponry that prosecutors employed to require [Haynes'] sentence" was enough, collecting cases where courts have granted compassionate release for stacked s. 924(c) sentences.

In another non-medical compassionate release case, the court in Millan, noted above, granted relief to undo an unfair life sentence under the "continuing criminal enterprise" statute. Clearly, compassionate release isn't just for medical reasons anymore. And compassionate release isn't just for "release," either. The statute, s. 3582(c)(1)(A), actually says that a court "may reduce the term of imprisonment" if it wants to, and "release," pre se, isn't required. In Carter v. U.S., 2020 U.S. Dist. LEXIS 68343 (D. Md. Apr. 17, 2020), Judge Ellen L. Hollander reduced a life sentence to a term of years, over the government's objections, by granting compassionate release.

Getting Started: Administrative Remedies

 While the BOP may be out of the picture for non-medical compassionate release, s. 3582(c)(1)(A) still requires that a written request is filed with the BOP for compassionate release before a prisoner can file his own motion in court. The courts are divided over whether you have to exhaust all your administrative remedies before going to court (i.e., the BP-8, BP-9, etc.). Most say you can if you still want to, but you don't have to and can just wait 30 days to file your motion.

This aligns with the statute, which says that a prisoner can file a motion "after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden."

The government, though, has been winning some arguments in the courts that a prisoner must go through the whole administrative remedy process before filing in court, which can take up to six months. See U.S. v. Arthaloney, 2020 U.S. Dist. LEXIS 89245 (D. Neb. May 21, 2020) ("if the warden denied the request within 30 days of receipt, the defendant must exhaust administrative remedies").

This, however, ignores that there are two separate options for giving the BOP the first chance: Exhausting administrative remedies or waiting 30 days. In Millan, the court found that the statutory requirement was satisfied after a 30-day wait from receipt of Millan's written request to the warden. And it's the date of the receipt that counts, not when it's submitted. See U.S. v. Miller, 2020 U.S. Dist. LEXIS 80817 (D. Idaho May 6, 2020). It doesn't have to be a formal request, like a BP-9, and a "copout" suffices as a written request.

But properly exhausting your administrative remedies has its benefits. The First Step Act added a provision, s. 3582(d), that the BOP must file an annual report on all compassionate release requests it receives and the outcome of those cases, even if the prisoner filed his own motion. However, the BOP only has to include the data from motions filed in cases where administrative remedies were exhausted. So, still file those BP-9s, BP-10s, and BP-11s, even if you go to court after only waiting 30 days.

To date, no court of appeals has addressed whether an emergency can excuse the initial request to the BOP, such as a deadly virus like COVID-19. All the district courts so far have held that its' statutorily mandated and can't be waived. But you can file again once you do meet the requirements. And for non-medical compassionate release, administrative remedies may be a waste of time. This is because the BOP's Program Statement 5050.50 on compassionate release, amended after the First Step Act, still only allows the BOP to move for compassionate release for medical reasons. Could exhaustion be "futile" in these cases? Again, there's not much in the courts about this yet.

Conclusion

Allowing prisoners to file for compassionate release has given the courts an avenue to fix unfair sentences that they couldn't fix before the First Step Act. The key seems to be finding a sympathetic judge, and then to file your motion in the right way. If your judge didn't want to impose the sentence she did, then find evidence of this in the record to support why granting compassionate release would be an option now.

By: Dale Chappell

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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