United State Sentencing Commission Publishes Compassionate Release Report

The United States Sentencing Commission has issued a report titled: Compassionate Release: The Impact of the First Step Act and COVID-19 Pandemic.

The Commission published a report about the compassionate releases that were sought, granted and denied for fiscal year 2020 (from September of 2019 to September of 2020).

There are 7 key findings:

1. Both the number of offenders who sought and the number of offenders who were granted compassionate release dramatically increased in fiscal year 2020, primarily in response to the COVID-19 pandemic.
   -In fiscal year 2020, courts decided an 18 U.S.C. § 3582(c)(1)(A) motion for 7,014 offenders and granted a sentence reduction to 1,805 offenders (25.7%). The number of Offenders Granted Relief increased more than twelvefold from First Step Year One (145 offenders).
   -Most grants of compassionate release (95.0%) occurred during the second half of the fiscal year, as COVID-19became widespread. Only 5.0 percent (n=91) of compassionate release grants occurred during the first half of the fiscal year.
   -The number of Offenders Granted Relief increased each month between February and July 2020 (to a high of 403 Offenders Granted Relief) and then decreased during the final two months of the fiscal year (to 327 in August and 254 in September 2020).
2. The First Step Act’s amendments to section 3582(c)(1)(A), which authorized the defendant to file a motion in federal court, helped facilitate the substantial increase in grants of compassionate release during the COVID-19 pandemic.
   -In fiscal year 2020, 96.0 percent of Offenders Granted Relief filed their own motion.
3. For an overwhelming majority of Offenders Granted Relief in fiscal year 2020, courts cited reasons specifically described in the Commission’s compassionate release policy statement (USSG §1B1.13), or reasons comparable to the reasons specifically described in the policy statement.
   -Courts cited the health risks associated with COVID-19 as at least one reason for granting relief for 71.5 percent of Offenders Granted Relief.
   -Courts cited a reason specifically described in the policy statement or another comparable reason other than COVID-19 as at least one reason for granting relief for nearly 20 percent of Offenders Granted Relief.
4. In the absence of an amended policy statement to provide guidance, there was considerable variability in the application of 18 U.S.C. § 3582(c)(1)(A) across the country.
   -The likelihood that an offender would receive compassionate release substantially varied by circuit, from a grant-rate high of 47.5 percent in the First Circuit to a low of 13.7 percent in the Fifth Circuit.
   -In fiscal year 2020, courts cited a reason related to length of the offender’s sentence to support a grant for a small percentage (3.2%) of Offenders Granted Relief. Courts disagreed, however, about whether such reasons can present a legally permissible basis for granting relief under section 3582(c)(1)(A).
5. An offender’s age, the length of original sentence imposed, and the amount of time the offender had already served emerged as the central factors that impacted the likelihood an offender would be granted relief.
   -Although older offenders represented a small portion of offenders who sought compassionate release, they were more likely to be granted relief compared to younger offenders. The grant rate was highest (61.5%) for offenders 75 years or older and lowest (below 20%) for offenders under 45 years old.
   -With the exception of offenders who received original sentences of 240 months or longer, as the length of the offender’s original sentence increased, the likelihood that the court would grant relief decreased (from 56.9% of offenders sentenced to a term of 12 months or less to 19.8% of offenders sentenced to a term of between 120 and 240 months). The grant rate for offenders who received an original sentence of 240 months or longer was 29.9 percent.
   -Offenders Granted Relief had served an average of 80 months and 50.5 percent of their sentence, while Offenders Denied Relief had served an average of only 57 months and 39.0 percent of their sentence.
6. By contrast, an offender’s race, Criminal History Category, and offense of conviction generally appeared to have little impact on the likelihood an offender would receive relief.
   -Across racial groups, the grant rate varied by only 2.2 percentage points (from a high of 27.5% for Other race offenders to a low of 25.3% for White offenders).
   -The grant rate varied by no more than 5.3 percentage points between offenders with the highest grant rate, in Criminal History Category (CHC) II (27.6%), and the lowest grant rate, in CHC III (22.3%)
   -The grant rate varied by no more than 5.2 percentage points across the most common offense types, from a high of 28.8 percent for fraud offenders to a low of 23.6 percent for firearms offenders.
   -Although they represented a small percentage of offenders who sought relief, the grant rates were generally much lower for offenders who were convicted of violent offenses.
7. Offenders Granted Relief received substantial reductions in their sentence, both in months and as a percentage of sentence.
   -In fiscal year 2020, the average reduction in sentence for Offenders Granted Relief was nearly five years (59 months) and more than 40 percent (42.6%) of the offender’s sentence.
   -Courts granted somewhat longer reductions in sentence to offenders who were granted relief for reasons related to the Commission’s policy statement other than COVID-19 (65 months and 44.0% of sentence) than to Offenders Granted Relief based specifically on the risk of contracting COVID-19 (54 months and 41.7% of sentence).
   -The relatively small group of Offenders Granted Relief based on a sentence-related reason received an average reduction of 235 months, nearly four times longer than the reductions for Offenders Granted Relief overall.

Finally, acting Chair Breyer indicated that he was ready for the President and Senate to approve new commissioners so that the Commission could resolve the lack of guidance on the topic:

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019—the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”