The United States Sentencing Commission and the "Compassionate Release" Loophole

The President of the United States has Indicated that he intends to appoint several people to the United States Sentencing Commission. This has profound impacts for both those awaiting sentencing and those in federal prison already.

What is the United States Sentencing Commission?

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.

United States Sentencing Commission Rules of Practice and Procedure

An example of something that the commission works on would be the Sentencing Chart contained in Chapter 5 of the guidelines where you look at the criminal history category and the offense level and you come to a suggested range of punishment. Or the drug table in USSG 2D1.1 that uses the amount of drugs that a person is deemed responsible for to come up with a base offense level. Another example of Sentencing Commission work is apparent in the notes of the guidelines. An example of this is in USSG 1B1.13 note 1, where “extraordinary and compelling reasons” to grant a compassionate release are further defined.

The Sentencing Guidelines can be amended or changed. In order to do this you must have 4 members vote on a change in the guidelines. Many of you may remember that our office, working with Prisology, submitted thousands of letters from the prison population and your loved ones asking that the drug table in 2D1.1 be amended. The commission voted unanimously to amend these guidelines.

The lack of a quorum on the Sentencing Commission and its effects

The blog Sentencing Law and Policy indicates that the Sentencing Commission has two commissioners since the beginning of 2019. The chair of the commission and four other commissioner spaces are vacant. This means that the Commission cannot make any changes to the guidelines.

Many of you will remember that in December of 2018 the FIRST STEP Act was passed into law. Among its provisions was compassionate release reform. Currently a person can seek a reduction in sentence “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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 of the defendant’s facility, whichever is earlier.” As many of you know, a person can seek a reduction in sentence if “extraordinary and compelling reasons warrant such a reduction.” But the guidelines have not been amended to explain what that means. Similarly, there has been no amendment to USSG 1B1.13, the applicable policy statement for reductions in sentence under 18 USC 3582.

Take a look at USSG application note 1(D):

(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

USSG 1B1.13 Application Note D

Application note 1(D) still says “As determined by the Director Of the Bureau of Prisons…” This has not been changed post-FIRST STEP Act. Note the conflict between note 1D and 18 USC 3582(c)(1)(A) above.

In United States vs. Ukrevich, 2019 WL 6037391, 8:03CR37, the District of Kansas granted relief to a person who had “stacked 924C” cases. In doing so, the court determined that “[o]ther courts have concluded that the Commission’s failure to amend Guideline § 1B1.13 and related Commentary following the First Step Act does not preclude a court from acting on motions for sentence reductions or using the catchall provision in Application Note 1(D)… This Court infers that the Commission would apply the same criteria, including the catch-all provision of Application Note 1(D), in the wake of the First Step Act’s amendment to § 3582(c)(1)(A), and that this Court may use Application Note 1(D) as a basis for finding extraordinary and compelling reasons to reduce a sentence.”

In United States v. Beck, 1:13-CR-186-6 (M.D.N.C. Jun. 28, 2019), the Middle District of North Carolina granted compassionate release relief to a person who was not receiving proper medical care. The court noted that:

“[t]he Sentencing Commission has not amended or updated the old policy statement since the First Step Act was enacted... nor has it adopted a new policy statement applicable to motions filed by defendants."

United States v. Beck, 1:13-CR-186-6, 11-12 (M.D.N.C. Jun. 28, 2019).

The same reasoning applies to compassionate releases due to COVID-19. In fairness, a number of courts have disagreed with this extension. See United States v. Willingham, 2019 WL 6733028, at *2 (S.D. Ga. Dec. 10, 2019) (disagreeing with decisions cited above, stating, “[t]hese cases, however, rest upon a faulty premise that the First Step Act somehow rendered the Sentencing Commission’s policy statement an inappropriate expression of policy. This interpretation, and it appears to be an interpretation gleaned primarily from the salutary purpose expressed in the title of Section 603(b) of the First Step Act, contravenes express Congressional intent that the Sentencing Commission, not the judiciary, determine what constitutes an appropriate use of the ‘compassionate release’ provision”).

The President’s Intent to Appoint Sentencing Commission Members

On August 12, 2020, the White House website shared a post indicating intent to appoint a chair of the Sentencing Commission and members to fill the vacancies. The proposed appointments are:

• Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission.
• Judge Claria Horn Boom, of Kentucky, as a Commissioner of the United States Sentencing Commission. 
• Judge Henry E. Hudson, of Virginia, as a Commissioner of the United States Sentencing Commission. 
• John G. Malcolm, of the District of Columbia, as a Commissioner of the United States Sentencing Commission. 
• Judge Luis Felipe Restrepo, of Pennsylvania, as a Commissioner of the United States Sentencing Commission. 

Moore, Boom, Hudson and Malcolm were appointed by GOP Presidents. Judge Restrepo is the only one that was listed as having served as an Assistant Federal Public Defender in the past.

In a story for NPR prior to the White House announcement, Kevin Ring, president of Families Against Mandatory Minimums noted that they are watching the commission and its composition, stating "We still have more work to do and we don't want to go backwards[.]"

Sentencing Law and Policy also explained that the Sentencing Commission’s charter states that "not more than four of the members of the Commission shall be members of the same political party." These selections could result in a party split of 5-2 based on which Presidents appointed them. Professor Berman, who runs Sentencing Law and Policy indicated that he is “inclined to believe that it is unlikely for any slate of USSC nominees to get confirmed by the US Senate in 2020.” And FAMM has already written a letter asking the Senate Judiciary Committee to refrain from filling the vacancies in the USSC until 2021, when they can be properly vetted.

Conclusion and Takeaways

The truth is that we don’t know what happens next. We don’t know if these nominees are going to be vetted, we don’t know if they are going to be approved by the Senate Judiciary Committee and we don’t know if these nominees are going to be approved by the Senate as a whole. We also don’t know if and when they would make changes to USSG 1B1.13 or its application notes and how that might change compassionate release policy.

Could a slate of more conservative commissioners vote on policy that could affect the catch-all language of 1B1.13 and if so, affect the terms by which incarcerated persons can seek compassionate release relief? It is definitely possible. There are several places where more conservative commissioners could make policy changes, and this could definitely be one of them. They could also always go the other way and make compassionate release relief more available, but I don’t know if I think that is likely.

It is also worth noting that any such changes would take time to get voted on most likely. First the commission sets priorities, then they do research, then they hear testimony and then they vote. So it might be at least 2022 before we get any amendments that deal with this. By then (hopefully) COVID-19 is under control. This could still affect “stacked 924c” relief as well as “851 relief” and other emerging areas of compassionate release litigation.