Both the Framers and Congress adopted a "capacious" approach to compassionate release; the Supreme Court should embrace it

Tempering criminal law with equitable sentence review has a rich history and constitutional roots

Judge Marvin Frankel’s assailed “lawlessness in sentencing” in writings that fueled the modern sentencing reform movement a half century ago. In his 1973 book, Criminal Sentences; Law Without Order, Frankel stressed that, amid declining faith in the rehabilitative ideal, “legislatures [had] not done the most rudimentary job of enacting meaningful sentencing ‘laws’.” He lamented that judges and parole officials, exercising broad discretion without any formal rules or criteria, wielded enormous sentencing power “effectively subject to no law at all.” Frankel’s book called for developing a “code of penal law” to “prescribe guidelines for the application and assessment” of “the numerous factors affecting the length or severity of sentences.” As he later explained, the “overriding objective” of his advocacy “was to subject sentencing to law.”

The reform movement Judge Frankel helped instigate was quite successful in bringing all sorts of law to sentencing. Indeed, many have fretted, as I have, that the federal sentencing system may now suffer from too much law. The Sentencing Reform Act of 1984 (SRA) and subsequent lawmaking by Congress and the U.S. Sentencing Commission have produced an extraordinarily intricate guideline system which functions in conjunction with multiple complex federal sentencing statutes. Modern federal sentencing law is also characterized by considerable rigidity and severity, especially in the application of numerous mandatory minimum sentencing provisions that can sometimes require judges to impose decades of incarceration even for relatively low-level offenders.

Congress’ decision to abolish parole via the SRA has aggravated the impact of complex, rigid, and severe federal sentencing law. In 1975, Maurice Sigler, then chair of the U.S. Board of Parole, advocated against eliminating parole by stressing how parole can ameliorate problematic sentences resulting from “penal codes [that] are typically a mishmash of conflicting penalties, some of them savage in their severity.” Sigler’s words remain astute a half-century later as the federal system remains a mishmash of conflicting sentencing guidelines and severe mandatory minimums. The harshest aspects of modern federal sentencing law could have been tempered, had parole been preserved in some form, through grants of early release to individuals subject to unnecessarily long prison terms. Operating on a case-by-case basis, parole could have functioned as a kind of equitable bulwark against the severity that defines much of modern federal sentencing law.

Though Congress abolished parole in the SRA, it also created a novel new means for judges to provide a kind of equitable relief to prisoners. In 18 U.S.C. § 3582(c)(1)(A), Congress authorized a court, “in any case,” to “reduce the term of imprisonment … if it finds that extraordinary and compelling reasons warrant such a reduction.” This statutory prison-term reduction authority requires judges to “consider[] the factors set forth in section 3553(a)” and also whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Notably, Congress placed no other substantive limits on this reduction authority, though in 28 U.S.C. § 994(t) it tasked the U.S. Sentencing Commission with “promulgating general policy statements” that “shall describe what should be considered extraordinary and compelling reasons for sentence reduction.” Congress placed just one limit on the Commission’s work: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”

The SRA’s legislative history reinforces the equitable concerns behind this new sentence reduction authority. A Senate Report stressed the value of a “safety valve” to “review and reduce” a prison term when “the defendant’s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner.” The Report indicated that a reduction of a prison term could be justified not only in “cases of severe illness,” but also in “cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence.” The Report further noted it would be “for court determination, subject to consideration of Sentencing Commission standards, of the question whether there is justification for reducing a term of imprisonment.” This “safety valve” structure, explained the Report, “keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.”

Significantly, the SRA originally stated that a § 3582(c)(1)(A) sentence reduction could be considered by a court only “upon motion of the Director of the Bureau of Prisons.” Over time, data and program reviews documented that the BOP failed to make such motions in an appropriate and timely manner. Congress addressed this problem via a provision in the First Step Act of 2018, which amended § 3582 to authorize prisoners to move in court for a prison term reduction if BOP did not do so within 30 days. Federal courts thereafter began directly receiving prisoner-initiated § 3582(c)(1)(A) motions, and the number of these motions spiked dramatically during the COVID-19 pandemic.

As federal courts nationwide began considering thousands of sentence-reduction motions, substantive divides emerged regarding what factors were sufficient to satisfy the statutory requirement of “extraordinary and compelling reasons” warranting a reduction in a term of imprisonment. Of particular note, circuits courts divided over whether non-retroactive changes in sentencing law could serve as “extraordinary and compelling reasons” for a sentence reduction; courts also disagreed on whether claims that would traditionally be raised as part of a collateral attack on a conviction or sentence under 28 U.S.C. § 2255 could serve as the basis for a reduction. The Supreme Court finally took up these issues this Term in a trio of cases, Fernandez v. United States, Rutherford v. United States and Carter v. United States.

As detailed in amici briefs submitted in these cases, I believe applicable statutes make plain that Congress called for the U.S. Sentencing Commission, and only the Commission, to define general rules and limits for sentence reduction motions. But the tenor of the oral arguments before the Supreme Court suggested multiple Justices were eager to create limits on sentence-reduction grounds beyond what Congress and the Commission have set forth in statutes and policy statements. Justice Kavanaugh noted that “’extraordinary’ and ‘compelling’ are both capacious terms and leave a lot of discretion”; some Justices seemed to consider that a bug rather than a feature of applicable law when expressing policy concerns about too many sentence-reduction motions being filed if there were not limits on what arguments could be considered by district judges. The government also argued that 3582 motions must not be a means to circumvent legal limits on § 2255 actions and on retroactive changes in the law.

But, as I see it, these sorts of policy concerns are to be taken up with Congress and the Commission, who are the proper policymakers for sentence reductions rules. Appellate courts should not concoct their own policy-driven limitations on sentence reduction motions not appearing in statutory text, especially given that Congress expressly tasked the Commission with “promulgating general policy statements” on these matters. Of course, appellate courts can and must assess, when adjudicating any case-specific claims of sentencing error raised on appeal, whether a district court has made a clearly erroneous judgment in an individual case based on its particular facts. But it is not the job of appellate courts to make general sentencing policy and restrict district courts’ sentencing discretion as a matter of law based on their own policy concerns. Notably, three decades ago the Supreme Court made this very point forcefully in Koon v. United States, 518 U.S. 81 (1996): “Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance,” because “for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission.” Id. at 106–07.

The government, and seemingly some Justices, may believe the statutory text of § 2255 and text limiting retroactivity of new sentencing laws function to limit the bases for sentencing reductions. But these general laws define categorical rules that determine the formal legal rights of all prisoners; these statutes do not address expressly or implicitly what individualized considerations might, on a case-by-case basis, amount to “extraordinary and compelling reasons” warranting a sentence reduction. There is a huge and meaningful difference between broad general rules that address remedying legal error or creating a legal right to retroactivity and the individualized and discretionary nature of so-called “compassionate release” through § 3582(c)(1)(A) sentence-reduction motions — a difference that echoes historic common law divisions between actions in law and in equity.

Common law courts, in a long-ago era, applied strict and formal legal rules; equity courts emerged to help correct potential unfairness by providing flexible, discretionary relief on a case-by-case basis. In parallel, the processes for criminal conviction and sentencing in federal courts involve strict and formal legal rules. So, too, does seeking a legal remedy for a legally flawed conviction or sentence through a § 2255 action or seeking relief when the law provides for retroactive application. Pursuing these actions involves seeking a legal corrective to a legal judgment that can become a matter of legal right if and when a defendant can offer up facts that entitle him or her to relief. And anyone who prevails on a § 2255 claim or who is legally eligible for retroactivity has a right to relief regardless of broader equities – e.g, a prisoner whose conviction is constitutionally flawed, say because prosecutors did not turn over exculpatory evidence before trial, will still secure § 2255 relief even if he has committed assaults and other crimes while in prison.

In contrast, no federal prisoner has a legal right to a sentence reduction under § 3582(c)(1)(A). Rather, sentence-reduction motions are a remedy in the spirit of historic equity concerns, based in a claim that individualized “extraordinary and compelling reasons” make it inequitable for the full prison term to be served. The “capacious” reach of the terms “extraordinary” and “compelling” is a feature, not a bug, of the statutory design because it provides a broad and wide canvas for district courts to determine on a case-by-case basis, without rigid legal limits, whether equitable considerations may justify reducing a prison term. A district judge considering a prisoner’s § 3582 motion is never going to be legally bound to grant relief – and, highlighting the equitable nature of this decision-making, a grant of a sentence reduction will have no precedential impact or import for others seeking such a reduction. But to fully effectuate the equitable nature of § 3582(c)(1)(A), a judge must have broad authority to consider all equitable considerations (mitigating and aggravating) when exercising sentencing discretion in this context. Statutory laws that define and restrict the legal remedies of § 2255 and retroactivity should not be caried over into the realm of equitable decision-making that Congress left “for court determination, subject to consideration of Sentencing Commission standards, of the question whether there is justification for reducing a term of imprisonment.”

Though the Supreme Court’s consideration of § 3582(c)(1)(A) sentence-reduction authority is ultimately a matter of statutory interpretation, it is valuable to close this discussion by noting that the Framers enshrined provisions in the U.S. Constitution that reveal their eagerness to preserve equitable review of potentially harsh and severe criminal laws. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” and Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States.” These provisions codify in our nation’s charter historic mechanisms for prisoners to seek review and reconsideration of the application of criminal laws even after an initial conviction and sentencing. And, notably, the Framers placed no legal limits on the broad authority of the President to grant clemency (other than a blanket restriction “in cases of impeachment”). The explanation of this constitutional choice was set forth in this telling way in Federalist 74:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

In other words, the Framers quite consciously provided for the President to have “capacious” clemency authority because, recognizing that the application of the criminal law is unavoidably severe and cruel and sanguinary in its particulars, both “humanity and good policy” call for an easy (and mostly unfettered) means of equitable amelioration to serve the needs of justice. I think it fair to view Congress’s creation of § 3582(c)(1)(A) sentence reduction authority as very much in the tradition of the Framers’ work, and I hope the Supreme Court appreciates that unduly fettering this authority would mean federal sentencing “justice would wear a countenance too sanguinary and cruel.

”