Sentencing Commission Report on Compassionate Release

The United States Sentencing Commission gave an updated report about the compassionate release motions that were  decided on from 2020 to August of 2021.  Between this and a recent CNN story we can make certain recommendations about the way forward.  

The United States Sentencing Commission

We have given several explanations about the United States Sentencing Commission.  Their stated purpose is as follows:

The United States Sentencing Commission is an independent agency in the judicial branch of government. Its principal purposes are:

(1) to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes;

(2) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and

(3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public.

Source: United States Sentencing Commission Rules on Practice and Procedure

The Sentencing Commission's Data

We have previously gone over a report about the Raw Data from the Sentencing Commission on this topic, but the main information is that the commission has received or documented data from the year 2020 until August 31, 2021:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders. This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic. The data in this report reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021). Prior to October 1, 2020, courts submitted to the Commission documentation regarding motions for all compassionate release that were granted, but not for all compassionate release motions that were denied. For the time period of January 1, 2020 to September 30, 2020, the Commission obtained documentation for compassionate release motions that were denied, where available, by searching court records using the PACER system. Beginning October 1, 2020, courts began submitting to the Commission documentation for all compassionate release motions, regardless of whether they were granted or denied. The data in this report is limited to motions for which the Commission received or obtained court documentation and completed its analysis by August 31, 2021.

The Report indicates that in that time frame, 20,565 motions were ruled on.  3,608 (or 17.5%) were granted and 16,597 (82.5%) were denied.  As the pandemic continued, the percentage of motions that were denied began to increase.  

2020 June 77.1 percent denied 

2020 July 74.3 percent denied

2020 August 77.9 percent denied

2020 September 80.7 percent denied

2020 October 87.1 percent denied

2020 November  86.1 percent denied

2020  December  83.2 percent denied

2021  January  83.5 percent denied

2021 February  85.3 percent denied

2021 March  87.6 percent denied

2021 April  88.6 percent denied

2021 May 90.0 percent denied

2021 Jun  88.9 percent denied

Like before, the Virgin Islands granted the least amount of compassionate release motions, granting zero out of seven.  The Southern District of Georgia granted 4 out of 230 for a denial rate of 98.3 percent.  The District of Oregon granted 82 out of 127 for a granting rate of 64.6 percent.  

Individuals sentenced either within their guideline range or below their guideline range had much higher rates of release than those sentenced above their guideline ranges.  Of the 3,608 persons who received compassionate release 43.9% received sentences in their guideline range.  53.7 received sentences below their guideline range.  2.4 received sentences above their guideline range.  

Of the 3,608 percent of individuals who received reductions of sentence, 1907 had been convicted of drug trafficking crimes accounting for 53.5 percent.  The next highest percentage was firearms at 446 reductions, coming in at 12.5 percent.  Fraud, Theft and Embezzmenent came in third at 332 cases, 9.3% of all reductions.  

Finally in the numerical analysis, individuals with sentences between 10-20 years had the highest percentage of releases at 28.8 percent.  Sentences of 20 years or more received 24.6 percent of releases and sentences between 5 and ten years received 23.2 percent.  

CNN’s Analysis of the Compassionate Release Study

CNN engaged in an analysis of the compassionate release numbers by the commission in an article titled: “Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic.”  CNN points to several things in its article:

The Inability By the United States Sentencing Commission to Promulgate Guidelines

The CNN Article explains that the national policy regarding compassionate release has not changed to reflect the impact of the FIRST STEP Act.  This is because the United States Sentencing Commission still does not have a quorum.  Currently there is only one member on the United States Sentencing Commission, Judge Charles Breyer (the brother of the Supreme Court Justice).  

The Commission Cannot provide any update to the guidelines without a quorum.  This includes updating “extraordinary and compelling circumstances.”  This explains the issues within the Sixth (United States vs. Jarvis) and Eleventh Circuits (United States vs. Bryant).  Without updated guidelines the Supreme Court will ultimately decide these cases one at a time, potentially causing disastrous results for inmates. 

Disparity in Districts Regarding Compassionate Release Grants

The CNN Article references the disparity in Districts Regarding Compassionate Release.  Recall the differences between the Southern District of Georgia and the District of Oregon.  The article posits that the disparities between districts in compassionate release mirror the variations in sentencing.  In other words, districts that grant higher sentences to defendants are also unlikely to grant compassionate release later on.  This may be because the compassionate release motions must be filed in the district where the person was convicted and in many situations the original sentencing judge may still be there.  We also know that many of these decisions may turn on the 3553(a) factors as well, as they must be consulted in a compassionate release case before the court rules.  

The article suggests Judicial politics may also play a role.  Researchers who studied compassionate release cases from March through October of 2020 found that district judges appointed by Democratic Presidents were more than twice as likely to approve release as judges appointed by Republican Presidents. 

The Vaccination Catch-22

The number of compassionate release motions that were ruled on and decided rose in 2020.  

January 39 motions decided

February 32 motions decided 

March 47 motions decided

April 460 motions decided

May 897 motions decided

June 1327 motions decided

July 1571 motions decided

August 1499 motions decided

September 1319 motions decided

October 2009 motions decided

November 1733 motions decided

December 1994 motions decided

Note that this is when they were decided, not when they were filed.  As previously indicated, as the vaccine was distributed prosecutors began to argue both ways:  Individuals who were vaccinated did not have extraordinary and compelling circumstances because the vaccine prevented severe illness and death while individuals who were refused vaccination did not have extraordinary and compelling circumstances because they were not doing everything that they could to protect themselves.  Many courts took the same position and denied higher percentages of motions as the months went on.  

We are closely monitoring the amount of infections as a result of the Delta variant.  As in the outside world, we have indicated that the Delta Variant is continuing to make a need for as much physical distancing as possible as well as masks inside.  

What should an individual seeking compassionate release consider today?  

While the best situation would be to consult an attorney, there are several things that an incarcerated person who wishes to consider filing a compassionate release motion today can consider:  

1.  Focus on the 3553(a) factors:  At the beginning of the pandemic we read several pro se motions that focused on the pandemic and nature of the virus and did not give appropriate consideration to the 3553(a) factors.  While the pandemic and its effects cannot be understated, the impact of the 3553(a) factors could be considered even more important; every district that I can think of has indicated that the pandemic along with the numbers of sick inmates can constitute extraordinary and compelling circumstances but the 3553(a) factors are specific and individualized.  Consider reviewing the documents on your case to determine how to best explain why your 3553(a) factors work in favor of release.  
2. Monitor the state of the pandemic and the state of breakthrough infections and serious disease.  There is still much that is not known about the pandemic including the need for future “booster” vaccinations.  Arguments for release must change as the circumstances change; continue to read and review studies and cases about the changing nature of the pandemic.  
3. Suggest the remainder of your carceral sentence to be added to your supervised release with a special term of supervised release to be home confinement.  We saw this term added to sentences early on in the pandemic and suggested it in many of our motions.  Some judges, especially those in conservative districts, may find such terms more palatable.