Important Guidance on Courts' Expansive Discretion to Grant Compassionate Release

2020 was a big year for compassionate release. Although Congress enacted the "First Step Act" more than two years ago—allowing incarcerated people to directly ask federal courts for release when "extraordinary and compelling" reasons warranted release—the pandemic sparked a flurry of litigation about the meaning of the law. 

As of December 2020, as Prof. Douglas Berman points out, COVID-19 has "killed in nine months more US prisoners than capital punishment over last 50+ years." So far, between BOP and privately run facilities, nearly 200 federal prisoners have died of this disease.

This week the Sixth Circuit continued to provide important guidance on district courts' wide discretion to decide what constitutes "extraordinary and compelling" reasons for release.

Background. Before the First Step Act, the BOP rarely moved for release for ill prisoners. According to the NYT, "[f]rom 2013 to 2017, the BOP approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody."

Even before the pandemic, the First Step Act's provision allowing incarcerated people to petition the court directly was already making a difference. But the pandemic accelerated its use, as the Sixth Circuit explained recently:

In 2019, federal courts granted 145 compassionate release motions; incarcerated individuals filed ninety-six (67.1%) of the motions, and the BOP filed the other forty-seven (32.9%). See [USSC Report, at 47]. We are now well into the second year of the First Step Act's implementation, a year defined by COVID-19. The BOP denied or ignored more than 98% of compassionate release requests in the first three months of the pandemic. See Blakinger & Neff [] (citing data provided by the BOP). Now unhindered by the BOP's procedural bars, incarcerated persons' filing and federal courts' granting § 3582(c)(1)(A) motions have surged this year. 10,940 federal prisoners applied for compassionate release between March and May 2020, id., and federal courts have compassionately released an estimated 1,700 persons in 2020 so far, compare [USSC Report, at 47] (twenty-four grants of compassionate release in 2018; 145 grants in 2019), with [BOP Statistics] (1,992 grants since December 2018).

Roadblocks. Federal prosecutors have vigorously fought many of these COVID-19-related petitions for release. The first roadblock to release was the "administrative exhaustion" requirement, and whether petitioners had to wait 30 days after asking the BOP to petition for release before asking the courts. As covered here, the Sixth Circuit sided with the government, holding that the requirement was mandatory.

Another potential hurdle was whether, as the government argued, petitioners needed to satisfy the detailed guidance about compassionate release found in Sentencing Commission policy statement USSG 1B1.13 and its corresponding "commentary." This argument found support in the language of the First Step Act, which amended 18 U.S.C. § 3582, stating that compassionate-release reductions must be "consistent with applicable policy statements issued by the Sentencing Commission." But on the other hand, 1B1.13, by its own terms, addressed the old (pre-First Step Act) procedure where motions were made by "the Director of the Bureau of Prisons," not those made directly by an incarcerated person to the court directly. 

Given that the policy statement was so clearly outdated, could it truly be called "applicable"?

Recent Rulings. In November, the Sixth Circuit answered "no." In United States v. Jones, the court held: "Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion." One Sixth Circuit judge concurred, but argued that the court didn't need to reach the 1B1.13 question.

Nevertheless, this question continued to percolate in the district courts in the Sixth Circuit because the government insisted that the holding in Jones was dicta. This argument was met with criticism from district courts, with one particularly striking rebuke: 

The government may not like the Jones court's answer to the question it posed, but calling it dictum misrepresents that holding in that case. Ethical lapses by the Executive Branch like this do not advance the cause of justice, irrespective of the underlying merits of the motion.

Yesterday, the Sixth Circuit affirmed its decision in Jones. In United States v. Elias, the Sixth Circuit cemented its view, restating its holding as follows (citations removed):

§ 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates. The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion. The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts. Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.

Thus, the inapplicability of 1B1.13 is firmly established in the Sixth Circuit, removing another potential barrier to compassionate release as COVID-19 continues to ravage the Bureau of Prisons.