Neglected Compassion: Reduction of Federal Prison Terms Under 18 U.S.C. § 3582(c)(1)
Here’s a tragic story with a hopeful ending. When Congress enacted the Comprehensive Crime Control Act of 1984, everyone knew the actual time prisoners serve for federal crimes was going to skyrocket – as indeed it did. With this knowledge, Congress included in two places a provision for reduction of sentences based on "extraordinary and compelling" circumstances arising well after the federal sentence becomes final.
The basic provision is 18 U.S.C. § 3582(c), which allows the federal judge to reduce the term of imprisonment, after considering the 18 U.S.C. § 3553(a) factors, where "extraordinary and compelling reasons warrant such a reduction." The statute names the Director of the Bureau of Prisons as the person to commence such a proceeding by filing a motion. Congress then assigned to the Sentencing Commission the responsibility – in the mandatory "shall" language – for expanding on the statutory language in § 3582(c) by setting criteria and providing examples, with the only limitation that rehabilitation "alone" is not sufficient. The statute, 28 U.S.C. § 994(t), states:
"The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."
And here’s where the story gets ugly. In the twenty years since the Guidelines went into effect, the Sentencing Commission has not acted on the mandatory direction in § 994(t). The over 700 amendments have almost all ratcheted up the sentences defendants must serve, but the provision giving the sentencing court broad authority to reduce a sentence that is too harsh in light of subsequent developments – such as illness, infirmities, extraordinary family needs, acts of heroism, and rehabilitation – was not implemented.
Even worse, with no consideration of the broad statutory language and the ameliorative purpose, the Bureau of Prisons filled the vacuum with the Death Rattle Rule: the only ground for filing a motion was terminal illness and, in practice, the motions were rarely filed until the last moments of life. The policy is pathetic: with almost 200,000 federal prisoners, the BOP has only filed an average of 46 motions in each of the last five years. And the telling statistic is that in about 16% of the cases where motions are filed, the prisoner died before a federal judge ruled on the motion.
For practitioners in a melancholy area of law, we deal with some of the most heart-breaking situations where prisoners and their families have tragic medical situations or other astoundingly strong equities but no path to the judge. We have sometimes had the good fortune to use § § 2241 or 2255 to begin litigation and either reach a compromise amended sentence or a release pending final disposition or a meritorious ground for relief. But much more often, people with no reason to be serving the long Guidelines sentences, with changed circumstances that are extraordinary and compelling by any measure, remain in custody.
Now the hopeful news: The Sentencing Commission has proposed an amended policy statement that implements its duty under § 994(t) by spelling out grounds that constitute "extraordinary and compelling" circumstances. The proposed amendment is linked here. The American Bar Association, former Pardon Attorney Margy Love, the Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, the Federal Defenders, and others have played roles in bringing this matter forward and, thankfully, the Sentencing Commissioners have recognized that the time has come to make the § 3582(c) provision meaningful by adding to the circumstances warranting relief.
Once the policy statement becomes effective, it will be interesting to see if the Bureau of Prisons recognizes the critical but ministerial role it plays under the statutory scheme. Under § 3582(c), the "it" that must find that the sentence reduction is appropriate is the Judiciary in the form of the sentencing court. The BOP, when it becomes aware of conditions arguably meeting the criteria under § 994(t), should alert the federal judge by motion to allow for the decision on the merits of the claim. To date, the BOP has adopted an unlawfully limited view, recently proposing another rule embodying its Death Rattle Rule. The Federal Defenders and others have pointed out the many ways the rule is unlawful, as a violation of delegation doctrine, separation of powers, and the plain meaning of the statute (the Federal Defender comment is available here).
So at a time when the federal prison population is setting new records, we may have a mechanism for ameliorating long sentences that are no longer serving the purposes of sentencing and, if not serving those purposes, are pointlessly and expensively cruel.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The basic provision is 18 U.S.C. § 3582(c), which allows the federal judge to reduce the term of imprisonment, after considering the 18 U.S.C. § 3553(a) factors, where "extraordinary and compelling reasons warrant such a reduction." The statute names the Director of the Bureau of Prisons as the person to commence such a proceeding by filing a motion. Congress then assigned to the Sentencing Commission the responsibility – in the mandatory "shall" language – for expanding on the statutory language in § 3582(c) by setting criteria and providing examples, with the only limitation that rehabilitation "alone" is not sufficient. The statute, 28 U.S.C. § 994(t), states:
"The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."
And here’s where the story gets ugly. In the twenty years since the Guidelines went into effect, the Sentencing Commission has not acted on the mandatory direction in § 994(t). The over 700 amendments have almost all ratcheted up the sentences defendants must serve, but the provision giving the sentencing court broad authority to reduce a sentence that is too harsh in light of subsequent developments – such as illness, infirmities, extraordinary family needs, acts of heroism, and rehabilitation – was not implemented.
Even worse, with no consideration of the broad statutory language and the ameliorative purpose, the Bureau of Prisons filled the vacuum with the Death Rattle Rule: the only ground for filing a motion was terminal illness and, in practice, the motions were rarely filed until the last moments of life. The policy is pathetic: with almost 200,000 federal prisoners, the BOP has only filed an average of 46 motions in each of the last five years. And the telling statistic is that in about 16% of the cases where motions are filed, the prisoner died before a federal judge ruled on the motion.
For practitioners in a melancholy area of law, we deal with some of the most heart-breaking situations where prisoners and their families have tragic medical situations or other astoundingly strong equities but no path to the judge. We have sometimes had the good fortune to use § § 2241 or 2255 to begin litigation and either reach a compromise amended sentence or a release pending final disposition or a meritorious ground for relief. But much more often, people with no reason to be serving the long Guidelines sentences, with changed circumstances that are extraordinary and compelling by any measure, remain in custody.
Now the hopeful news: The Sentencing Commission has proposed an amended policy statement that implements its duty under § 994(t) by spelling out grounds that constitute "extraordinary and compelling" circumstances. The proposed amendment is linked here. The American Bar Association, former Pardon Attorney Margy Love, the Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, the Federal Defenders, and others have played roles in bringing this matter forward and, thankfully, the Sentencing Commissioners have recognized that the time has come to make the § 3582(c) provision meaningful by adding to the circumstances warranting relief.
Once the policy statement becomes effective, it will be interesting to see if the Bureau of Prisons recognizes the critical but ministerial role it plays under the statutory scheme. Under § 3582(c), the "it" that must find that the sentence reduction is appropriate is the Judiciary in the form of the sentencing court. The BOP, when it becomes aware of conditions arguably meeting the criteria under § 994(t), should alert the federal judge by motion to allow for the decision on the merits of the claim. To date, the BOP has adopted an unlawfully limited view, recently proposing another rule embodying its Death Rattle Rule. The Federal Defenders and others have pointed out the many ways the rule is unlawful, as a violation of delegation doctrine, separation of powers, and the plain meaning of the statute (the Federal Defender comment is available here).
So at a time when the federal prison population is setting new records, we may have a mechanism for ameliorating long sentences that are no longer serving the purposes of sentencing and, if not serving those purposes, are pointlessly and expensively cruel.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 5/03/2007 04:55:00 PM
6 Comments:
I have read and re-read this writing. Thank you Mr. Sady. See BOP 2008 "newsletter" http://www.bop.gov/news/PDFs/legal_guide.pdf The BOP has ignored the USSC AGAIN, even with the expanded language. What can be done, they do want ever they want. It is Horrible.
I am wondering where you got the statistic regarding the number of motions filed and the % of inmates dying prior to a ruling. Any help is much appreciated!
I am fighting to have a Compassionate Release brought to court. The BOP ignores our requests to let the courts decide if there are grounds to downward depart. This is another non-violent drug case, the man has served 18 years, 7 years remaining. This man stopped a murder plot of a warden. Two wardens have written astonishing letters, going so far as to say "what you did was indeed extraordinary". Another letter from the lawyer at the prison "we have certainly extracted every measure of punishment due us".
This man is also ill, we have a "Special Progress" note from a BOP doctor giving him 12 to 18 months to live.
The BOP botched a biopsy, the site turned gangrenous. This man was taken to an outside hospital twice. Very close to death according to the ER reports. There was organ loss as a result.
He certianly fits the criteria for the director of the BOP to bring these things to the attention of the court. Last year (April 2007) the USSC added application notes to Compassionate Release, I can only assume this was done to give the BOP direction to act. The BOP has been "un-forthcoming" at best, down right evil (if that is the opposite of compassionate) at worst. Had the USSC been satisfied with the way the BOP had been handing themselves on this topic, they would not have added application notes, clearly designed to expand the number of cases the BOP should bring to the courts. Still the BOP ignores the USSC. The BOP 2008 policy statement shows no change on this topic from a year earlier before the USSC CLEARLY intended changes. The BOP policy is also to "answer" a Compassionate Release request, which they have not even answered us, and the BOP will not even acknowledge the adminstavive remedies we have filed.
How is it that the citizen is supposed to follow the law, and the government is under no such obligation?
I want to add; I find this so disturbing, I really thought we lived in a Christian Nation, including the values that come long with that honor. I suspect I maybe wrong.
Update, the BOP has still not bothered to answer, We are suiting for a Writ of Mandamus. The Federal Prosecutor in SDNY FAILED to file their response with the clerk of the court, for over 25 days. We were Pro Se, so our access to the government's answer was blocked. My husband is/was to sick to handle this himself. We have an attorney now. The Prison has "returned to sender" legal mail stamped "no such inmate or inmate number". Nice guys aren't they. The DOJ seems to do as it pleases,forget the USSC and Congress. I really had no idea how nefarious theses people could be.
Update, the BOP has still not bothered to answer, We are suiting for a Writ of Mandamus. The Federal Prosecutor in SDNY FAILED to file their response with the clerk of the court, for over 25 days. We were Pro Se, so our access to the government's answer was blocked. My husband is/was to sick to handle this himself. We have an attorney now. The Prison has "returned to sender" legal mail stamped "no such inmate or inmate number". Nice guys aren't they. The DOJ seems to do as it pleases,forget the USSC and Congress. I really had no idea how nefarious theses people could be.
Sorry this is not about the Current blog info, rather it is a question for you,My son's trial in fed ct for Conspiracy to deal meth. The head DEA agent was on the witness list and sat at the Prosecutors table during the trial , then calle d to testify and after a few minutes declared expert, I'm just wondering what is the rule on this , i always thought that witnesses did not listen to all the orther witnesses.
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