Putting The Compassion Into “Compassionate Release” With A Little Help From Setser

Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue. Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t). The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted. Great theory; horrible reality.

The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.” In about 15% of the cases where a motion is requested, the prisoner dies before the BOP makes its final decision. Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report at pages 25-26. Instead, the BOP violates its statutory mandate and the separation of powers by implementing the program through a regulation that only allows a motion to be filed where there are “particularly” “extraordinary and compelling reasons” – whatever that means – and only if the BOP decides the motion should be granted.

Every federal defense lawyer has the tools to challenge the BOP’s unlawful application of § 3582(c). Phillip Smith recently called AFPD Ruben Iñiguez from federal prison to say that, despite being told that his acute myelogenous leukemia would soon take his life, the BOP had repeatedly refused to file a § 3582(c) motion. Phillip wanted his sentencing judge to decide whether to reduce his 156-month sentence for half-an-ounce of meth to time served, since he only had 29 months left to serve and he suffered from a terminal illness. The defense filed a motion for reduction of sentence before the sentencing judge, asserting that the BOP was violating the statutes and due process by failing to apply the Sentencing Commission standard and by substituting its Executive Branch decision regarding the merits of the motion for the Judicial Branch discretion conferred by the statute and the separation of powers. Given the unconstitutional interference with judicial discretion, the sentencing judge had jurisdiction to address the § 3582(c) issue under 28 U.S.C. § 2255 and under the court’s ancillary authority from the original criminal case. Phillip’s initial motion and the supplement are linked here and here.

So this morning the Supreme Court just gave our § 3582(c) litigation a big boost in Setser. First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).” Exactly. The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority. But there’s more. During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c). Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))? Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.

Phillip’s case ended well. After initial litigation, the BOP changed its mind and the Director filed a motion, which was immediately granted. Phillip was home the next day with his family, a little over two weeks after the initial filing. But we know with a prison population of 216,251 inmates, and the proper standard having never been applied, there are clients serving sentences who should be receiving second look consideration from their sentencing judge. We defenders need to advocate zealously for our clients to breath life into the second look statute where there are “extraordinary and compelling reasons” and to remove the ironic quotation marks from “compassionate release.” With any luck, the BOP will recognize that its limitations on second look resentencing under § 3582(c) are unlawful and bad public policy. By broadly providing sentencing judges the opportunity to recalibrate their sentences in light of “extraordinary and compelling reasons,” the BOP stops wasting taxpayer money on prisoners who no longer need to be incarcerated, and relieves federal prison over-crowding – currently at 137% of capacity – that creates dangers for both corrections officers and inmates, while making rehabilitative programs harder to implement.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon