Compassionate Release and the First Step Act
How the First Step Act has Divided the Nation’s Courts of Appeals
A compassionate release may be a way for a federal criminal defendant to receive a reduced sentence and in some cases, may be a last resort to bring a loved one home from prison.
Read more below to learn about how different courts are ruling on compassionate release motions based on changes in the law, and how Newland Legal, PLLC, can help you fight for your freedom. To learn more about the compassionate release process, or to speak to an attorney today, call us at (303) 948-1489 or send an email to info@newlandlegal.com.
What is a Compassionate Release?
Not long ago, a “compassionate release” could only be filed by the Federal Bureau of Prisons (“BOP”) based on very limited criteria.
In late 2018, Congress passed the First Step Act (“FSA”) which, among other things, opened the doors to allow federal inmates to file for compassionate release from U.S. District Courts on their own.
Since the FSA took effect, the United States Sentencing Commission (“USSC”) updated its policy on what circumstances may warrant district courts granting criminal defendants early release from prison. Among the USSC’s new policy is the ability of a federal inmate to seek compassionate release based on a change in law.
However, whether such relief is available to a criminal defendant currently depends on the geographic location of their sentencing court. While some circuits have expressly found that a change in law can constitute cause for reducing a person’s sentence, other courts have held that the USSC’s policy goes beyond its executive power and refuse to allow a reduction in sentence based on what other courts have found to be “extraordinary and compelling circumstances.”
Compassionate Release and the First Step Act
For a comprehensive explanation on what exactly a compassionate release is, you can read more about it here.
In 2018, Congress enacted the First Step Act which amended the language of 18 U.S.C. § 3582(c)(1)(A) to allow federal criminal defendants to move for a reduction in sentence based on “extraordinary and compelling circumstances.” This motion is commonly referred to as a compassionate release.
Under § 3582(c)(1)(A), the district court can reduce a sentence already imposed “after considering the factors set forth in section 3553(a) if it finds that
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison . . . and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
And that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission;
18 U.S.C. § 3582(c)(1)(A).
Once Congress passed the FSA, federal inmates began filing their own motions for compassionate release almost immediately. However, the changes made to § 3582(c)(1)(A) were not the only ones on the horizon. Within a year, the world went through the COVID-19 pandemic which had hit the densely populated prisons with tragic results.
The changes made by the FSA and the impact of COVID-19 led to the filing of thousands upon thousands of compassionate release motions. The prolific requests for compassionate release during a dire time led many courts to call into question the last sentence in § 3582(c)(1)(A): “And that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
Until 2023, the Sentencing Commission had not updated its policy statement regarding compassionate release. The pre-2023 language only applied to BOP-initiated motions for compassionate release when defining what circumstances are “extraordinary and compelling” under § 3582(c)(1)(A)(i). This resulted in many courts determining that, because there was a lack of policy statement issued by the USSC, the sentencing courts were free to determine what constitutes extraordinary and compelling circumstances themselves.
On November 1, 2023, the Sentencing Commission issued a new policy statement under U.S.S.G. § 1B1.13, four years after the changes of the FSA took effect. Under the 2023 guidance, the Sentencing Commission provided six categories that could constitute extraordinary and compelling circumstances. These include: (1) medical circumstances of the defendant; (2) age of the defendant; (3) family circumstances of the defendant; (4) victims of abuse; (5) other reasons; and (6) unusually long sentence. U.S.S.G. § 1B1.13(b).
Even with the Sentencing Commission’s updated policy, the circuit courts are still split on the last category: an unusually long sentence. Under the Guidelines, this category is defined as:
If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.
U.S.S.G. § 1B1.13(b)(6). The Guidelines contain another provision on the limits on using changes in law to seek a reduction in sentence or compassionate release:
Except as provided in subsection (b)(6), a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) shall not be considered for purposes of determining whether an extraordinary and compelling reason exists under this policy statement. However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under this policy statement, a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction.
U.S.S.G. § 1B1.13(c).
What is a Nonretroactive Change in Law?
To any non-lawyer (and to many lawyers), the above definition does little to explain in layman’s terms what a nonretroactive change in law is. Put in more simple terms, a nonretroactive change in law occurs when Congress changes a criminal statute but purposefully makes that change not apply to anyone that has already been sentenced.
The best examples are those changes that were also made by the First Step Act of 2018, and currently the subject of many compassionate release motions across the country. Prior to the FSA, if a defendant was convicted of multiple 18 U.S.C. § 924(c) charges, each subsequent 924(c) conviction carried a statutory mandatory 25-year consecutive sentence. The FSA changed the 924(c) “stacked” penalties to clarify that a “subsequent” 924(c) conviction qualifies only if a prior 924(c) conviction had become final at the time of sentencing.
This change resulted in vast disparity among federal criminal defendants sentenced before and after the FSA. Prior to 2018, a defendant with three 924(c) convictions would have been required by law to be sentenced to 55 years of imprisonment (5 years for 1st 924(c), 25 years for second 924(c), and 25 years for 3rd 924(c), all consecutive). Under the current sentencing scheme after the FSA, the statutory minimum for the exact same offense would be 15 years instead of 55. As such, a defendant sentenced prior to the FSA would receive a sentence 40 years more than a defendant sentenced today for the exact same conduct. However, in making this change to the statute, Congress did not intend for the lesser punishment structure to apply to defendants who had already been sentenced. This is a nonretroactive change in law.
After the FSA changed the penalty structure of 18 U.S.C. § 924(c) and modified section 3582(c)(1)(A) to allow a defendant to bring their own motion for compassionate release, many federal criminal defendants sought a reduction in sentence based on the fact that they would be facing a much lesser penalty if they were sentenced today. Before and after the Sentencing Commission issued its commentary on compassionate release, these motions were met with mixed results all across the country.
What Circuits allow a Compassionate Release Based on a Change in Law?
Currently, the First, Fourth, Ninth, and Tenth Circuits have held that non-retroactive changes in law, like the one described above, can qualify as extraordinary and compelling circumstances warranting a reduction in sentence/compassionate release. United States v. Ruvalcaba, 26 F.4th 14, 24 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271, 287–88 (4th Cir. 2020); United States v. Jean, 108 F.4th 275, 281 (5th Cir. 2024); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022); United States v. McGee, 992 F.3d 1035, 1047 (10th Cir. 2021).
These circuit courts consist of the following states in which a compassionate release motion may be brought in federal district court based on a nonretroactive change in law:
First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Fifth Circuit: Louisiana, Mississippi, and Texas.
Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
What Circuits foreclose a Compassionate Release Based on a Change in Law?
On the other side of the coin are the circuit courts that have explicitly rejected the idea that a defendant can file for compassionate release based on a change in law, even after the Sentencing Commission’s policy statement allowing such.
After a lengthy intra-circuit split, the Sixth Circuit held en banc that a change in law is not extraordinary and compelling justification for a compassionate release. United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022) (en banc).
The Seventh, Eighth, D.C. Circuit, and most recently Third Circuit have held the same. United States v. Thacker, 4 F.4th 569, 573–74 (7th Cir. 2021); United States v. Crandall, 25 F.4th 582, 585 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185, 1198–99 (D.C. Cir. 2022); and United States v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024).
The Third Circuit’s decision in Rutherford is quite significant since it is the first published opinion rejecting the Sentencing Commission’s updated policy statement on 1B1.13. In doing so, the Third Circuit concluded that subsection (b)(6) of the Amendment Policy Statement is inconsistent with the First Step Act and conflicts with Congress’ will. Accordingly, the Third Circuit held that a non-retroactive change in law cannot be considered in determining a prisoner’s eligibility for compassionate release despite the Sentencing Commission’s policy statement to the contrary.
The circuits that have found a nonretroactive change in law to not apply to motions for compassionate release include the following states:
Third Circuit: Delaware, New Jersey, Pennsylvania.
Sixth Circuit: Kentucky, Michigan, Ohio, Tennessee.
Seventh Circuit: Illinois, Indiana, Wisconsin.
Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota.
D.C. Circuit: District of Columbia, Washington, D.C.
How can a reduction be warranted in one circuit and not in another?
It is not unusually for circuit courts to have differing opinions on matters of law and interpretation. However, the it is a struggle for anyone to comprehend how a defendant can be eligible for a compassionate release in one state, but a defendant with an identical case can be ineligible in neighboring state.
It will likely take an the United States Supreme Court to act on this circuit split and issue a decision that would bind all federal courts on the issue of whether a federal criminal defendant can seek a compassionate release based on a change in law.
If you or a loved one are interested in speaking with a federal compassionate release lawyer, contact the lawyers of Newland Legal at (303) 948-1489 or by email to info@newlandlegal.com to discuss your case today.
