Compassionate Release and Changes in Law: A Narrow Narrowing in U.S. v. Wills

After initially deciding the case in an unpublished order, the Sixth Circuit later ordered publication of its decision in United States v. Jeffery Wills. The opinion is a disappointing one for imprisoned people petitioning for “compassionate release” under 18 USC 3582(c)(1)(A) based on intervening changes of law, but should not be read as closing the door on consideration of disparities between previous and current sentencing practice.


Mr. Wills sought a reduced sentence from the district court, seemingly on the sole basis that he was subject to enhanced penalties under 21 USC 841 and 851 that, after passage of the First Step Act in 2018, would not apply if he were sentenced today. In denying his motion, the district court noted that the First Step Act declined to make these changes retroactive. Mr. Wills, proceeding pro se, appealed to the Sixth Circuit.


The appeals court found that the district judge did not abuse his discretion in denying Mr. Wills’s motion, noting the nonretroactivity of the First Step Act’s changes to 851 penalties like the district court did. It wrote that because nonretroactivity is the “ordinary practice,” it cannot also be an “extraordinary and compelling reason”—the standard to consider granting compassionate release—to reduce a sentence. This language will no doubt be used by the government to oppose compassionate release for people who argue they would have faced lesser punishment under contemporary standards.


However, the decision should not be treated as a sweeping one. First, Mr. Wills’s petition seemed to rest on the 851 sentencing disparity alone. Denying that petition was not an abuse of discretion. Many incarcerated people, though, will raise other claims that they ask to be considered in conjunction with such a disparity argument. In addition and more fundamentally, the decision does not purport to diminish the Sixth Circuit’s holding in Jones that district courts currently “have full discretion to define ‘extraordinary and compelling’” reasons to consider granting compassionate release where an incarcerated person (rather than the Bureau of Prisons) petitions for relief.


On a last and more encouraging note, in McKinnie the Sixth Circuit recently remanded a compassionate release case to the district court where that court had refused to consider whether the changes wrought by the circuit’s Havis decision could constitute an extraordinary and compelling reason. That order came a week after Mr. Wills’s appeal had been decided in non-published form and stated that the Sixth Circuit’s decisions clarifying the compassionate release framework, including Jones, “leave some legal questions unresolved about when and whether intervening legal developments constitute ‘extraordinary and compelling reasons’ for a sentence reduction.” The case was sent back to the district court for it to consider Mr. McKinnie’s claim.

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