United States Sentencing Commission Hearing on Proposed Amendments to the Federal Sentencing Guidelines
February 23-24, 2023
Paul J. Larkin
John, Barbara, and Victoria Rumpel Senior Legal Research Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
Thank you for the opportunity to submit this statement and to testify at your hearing. My name is Paul J. Larkin. I am the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow at the Heritage Foundation. I note my title and affiliation for identification purposes only. I offer my statement and testimony in my individual capacity. Members of the Heritage staff submit written statements and testify as individuals discussing their own independent research. The views expressed here are my own and do not reflect an institutional position for Heritage or its board of trustees. Nothing I write or say should be construed as representing the views of Heritage.
Compassion, like mercy, is a highly revered virtue.REF In the criminal justice system, the issue of compassion arises when a prisoner suffers from a chronic and disabling or terminal illness. The question is whether a prisoner in those straits should be released early, perhaps to home or a hospice, so that he or she can cross the River Styx beyond prison walls. That has been a traditional justification for a chief executive to release a prisoner by commutation or parole.REF To implement that principle, more than 40 states have statutory provisions that authorize parole boards to release dying or gravely ill prisoners under “medical parole” or “geriatric parole.”REF
Section 603 of the First Step Act of 2018 contains a compassionate release provision that incorporates the classical understanding of that concept and expands on it.REF That provision has become the subject of considerable discussion and litigation.REF Some parties favor an expansive interpretation of that act. In their view, Section 603 empowers the U.S. Sentencing Commission to promulgate Guidelines or Policy Statements that effectively authorize U.S. district courts to release prisoners before the completion of their sentences on a host of nontraditional grounds.REF Among them would be disparities between the sentences that different offenders received for the same crime.REF Also, they argue that Section 603 even authorizes district courts effectively to adopt a “second look” process for reconsidering a prisoner’s sentence. In theory, that interpretation of Section 603 would also empower district courts to release prisoners because of so-called “mass incarceration” supposedly afflicting the federal criminal justice system,REF even though that ground is entirely unrelated to the traditional basis for treating gravely ill or dying prisoners with compassion.
The argument goes as follows.REF The Sentencing Reform Act of 1984 instructs the U.S. Sentencing Commission to “promulgat[e] general policy statements regarding the sentencing modification provisions” in that act.REF Those policy statements “shall describe what should be considered extraordinary and compelling reasons for sentence reduction,” and must include “criteria to be applied and a list of specific examples.”REF The Sentencing Reform Act of 1984 did not define the meaning of the term “extraordinary and compelling reasons,” but Congress did make it clear that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”REF Accordingly, the argument goes, the Sentencing Reform Act of 1984 provision empowers the Sentencing Commission to define the “extraordinary and compelling” justifications that, atop proof of rehabilitation, permit a district court to grant a prisoner an early release. A host of justifications can qualify, some argue, such as the ones noted above.
In my opinion, such interpretations stretch the text of the First Step Act of 2018 beyond its breaking point. That interpretation would enable district courts effectively to resentence a prisoner if they disagreed with the original sentence. District courts also could release a prisoner if they found the conditions of confinement unsettling even if not unconstitutionally “cruel and unusual.”REF District courts could effectively grant inmates parole even though President has traditionally exercised that authority under the Article II Pardon Clause to exonerate an offender or commute his sentenceREF or an executive branch parole board authorized by statute has used it to release an offender from prison into the custody of parole officials before the completion of his sentence.REF
In my opinion, Section 603 plays an important, but far less momentous role in the criminal justice process. It carries forward the traditional justification for a chief executive or parole board to release a prisoner before completion of term of imprisonment, whether by commutation or parole: namely, that an elderly prisoner should be released early either because he or she suffers from a chronic, disabling infirmity or because he suffers from terminal illness that will soon take him across the great divide.REF Section 603 also permits the Sentencing Commission to fill out the meaning of the terms in that law, but it does not authorize the federal courts to construct an entirely new sentencing apparatus based on the undefined phrase “extraordinary and compelling circumstances.” The First Step Act of 2018 leaves for Congress the responsibility to decide what, if any, other justifications are sufficiently weighty to overcome the finality of a sentence.REF
Section 603 empowers the Sentencing Commission to devise Policy Statements that assist district courts decide how to resolve a prisoner’s request for compassionate release. The Sentencing Reform Act of 1984 authorized such relief, but only if the Federal Bureau of Prisoners asked a district court to grant it.REF The First Step Act of 2018 sought only to ensure that a prisoner could independently ask a district court for an early release on that ground. That law did not also empower the Sentencing Commission or district court judges to act like “junior varsity” chief executivesREF and release a prisoner early for whatever reason the Commission or court thought was “extraordinary.” It certainly did not authorize either of those two bodies to engage in sentencing or prison reform under the guise of being “compassionate.”
I would like to make three points. First, the Sentencing Reform Act of 1984 granted district courts only limited authority to revise a sentence; that power was cabined to instances of what historically has been known as “compassionate release”—viz., the release of a terminally ill prisoner so that he need not die within a prison’s walls; and what authority it did offer district courts was conditioned on the Federal Bureau of Prisons (BOP) filing a motion in district court to enable the court to consider the merits of a prisoner’s application for compassionate release.REF Second, BOP often failed to act at all, or at least in a timely manner, to permit district courts to consider a prisoner’s compassionate release application. In response, Congress eliminated the BOP’s role as doorkeeper in the First Step Act of 2018 so that a prisoner can seek relief without the BOP’s approval. Third, the First Step Act does not also empower district courts to engage in a de novo reconsideration of a prisoner’s sentence for reasons unrelated to a severe and chronic or terminal medical condition, nor does it authorize the U.S. Sentencing Commission to create a new sentencing scheme that would enable or encourage district courts to resentence a prisoner or to release him for reasons that have traditionally been done by the President under his or her Article II Pardon Clause authority to commute a sentence. The Sentencing Commission has only the authority that Congress granted it,REF and the First Step Act did not grant this Commission or the federal courts a commutation power. Under settled principles of statutory interpretation and administrative law, this Commission cannot assume it in the absence of clear statutory authorization.REF
I. The Sentencing Reform Act of 1984 and a District Court’s Power to Revise a Sentence of Imprisonment
At common law, a trial judge could revise a sentence only during the same term of court in which the judge imposed it.REF Once that term ended, a sentence became final, and the only power to modify it was in the hands of the Crown, which could alleviate a punishment by granting clemency. The Sentencing Reform Act of 1984 eliminated a trial court’s term-of-court power to revisit a sentence. The act made all sentences final and not subject to revision by any federal court.REF
Nonetheless, Congress gave district courts limited authority to shorten a prisoner’s sentence if “extraordinary and compelling reasons” warranted a reduction.REF The text of the Sentencing Reform Act of 1984 did not define that term or offer examples of the justifications for an early release.REF Relief for dying prisoners, however, had been a longstanding justification for releasing an offender from prison via clemency or parole.REF The Sentencing Reform Act of 1984 gave a district court that authority.REF
But there was a catch. The Sentencing Reform Act of 1984 also made clear that a district court could not grant a prisoner relief unless the BOP first filed a motion in federal district court asking the court to reduce his sentence.REF The courts deemed that restriction as jurisdictional.REF The effect was to make the BOP the gatekeeper for compassionate release, in all likelihood to avoid a flood of such requests.REF The Bureau of Prisons historically interpreted its compassionate release authority narrowly, limiting release to prisoners who were near death.REF Perhaps because it feared the public backlash that would result from releasing a prisoner who “miraculously recovered” or who committed a post-release crime,REF the BOP rarely opened the gate. In fact, as the Justice Department Inspector General noted in 2013, between 2006 and 2011, the BOP’s miserly application of its compassionate release authority had untoward consequences for 28 prisoners. They died before the BOP resolved compassionate release petitions that had been approved by federal wardens.REF
II. The First Step Act of 2018
In 2018, Congress decided that the BOP had abused its gatekeeper role and revised the Sentencing Reform Act of 1984. The First Step Act of 2018 authorizes a prisoner to apply for relief after exhausting his administrative remedies or 30 days after the warden receives his petition. District courts are no longer barred from ruling on a prisoner’s compassionate relief request when the BOP disagrees. The district court now may overrule the BOP.
Congress achieved that result through Section 603(b) of the First Step Act of 2018. It provides as follows:
SEC. 603. FEDERAL PRISONER REENTRY INITIATIVE REAUTHORIZATION; MODIFICATION OF IMPOSED TERM OF IMPRISONMENT.
* * * * *
(b) INCREASING THE USE AND TRANSPARENCY OF COMPAS- SIONATE RELEASE.—Section 3582 of title 18, United States Code, is amended—
(1) in subsection (c)(1)(A), in the matter preceding clause
(i), by inserting after ‘‘Bureau of Prisons,’’ the following: ‘‘or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier,’’;
(2) by redesignating subsection (d) as subsection (e); and
(3) by inserting after subsection (c) the following: ‘‘(d) NOTIFICATION REQUIREMENTS.—
(1) TERMINAL ILLNESS DEFINED.—In this subsection, the term ‘terminal illness’ means a disease or condition with an end-of-life trajectory.
(2) NOTIFICATION.—The Bureau of Prisons shall, subject to any applicable confidentiality requirements—
(A) in the case of a defendant diagnosed with a terminal illness—
(i) not later than 72 hours after the diagnosis notify the defendant’s attorney, partner, and family members of the defendant’s condition and inform the defendant’s attorney, partner, and family members that they may prepare and submit on the defendant’s behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);
(ii) not later than 7 days after the date of the diagnosis, provide the defendant’s partner and family members (including extended family) with an opportunity to visit the defendant in person;
(iii) upon request from the defendant or his attorney, partner, or a family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A); and
(iv) not later than 14 days of receipt of a request for a sentence reduction submitted on the defendant’s behalf by the defendant or the defendant’s attorney, partner, or family member, process the request;
(B) in the case of a defendant who is physically or mentally unable to submit a request for a sentence reduction pursuant to subsection (c)(1)(A)—
(i) inform the defendant’s attorney, partner, and family members that they may prepare and submit on the defendant’s behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);
(ii) accept and process a request for sentence reduction that has been prepared and submitted on the defendant’s behalf by the defendant’s attorney, partner, or family member under clause (i); and
(iii) upon request from the defendant or his attorney, partner, or family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A); and
(C) ensure that all Bureau of Prisons facilities regularly and visibly post, including in prisoner handbooks, staff training materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand, notice of—
(i) a defendant’s ability to request a sentence reduction pursuant to subsection (c)(1)(A);
(ii) the procedures and timelines for initiating and resolving requests described in clause (i); and
(iii) the right to appeal a denial of a request described in clause (i) after all administrative rights to appeal within the Bureau of Prisons have been exhausted.
(3) ANNUAL REPORT.—Not later than 1 year after the date of enactment of this subsection, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A), which shall include a description of, for the previous year—
(A) the number of prisoners granted and denied sentence reductions, categorized by the criteria relied on as the grounds for a reduction in sentence;
(B) the number of requests initiated by or on behalf of prisoners, categorized by the criteria relied on as the grounds for a reduction in sentence;
(C) the number of requests that Bureau of Prisons employees assisted prisoners in drafting, preparing, or submitting, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;
(D) the number of requests that attorneys, partners, or family members submitted on a defendant’s behalf, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;
(E) the number of requests approved by the Director of the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence;
(F) the number of requests denied by the Director of the Bureau of Prisons and the reasons given for each denial, categorized by the criteria relied on as the grounds for a reduction in sentence;
(G) for each request, the time elapsed between the date the request was received by the warden and the final decision, categorized by the criteria relied on as the grounds for a reduction in sentence;
(H) for each request, the number of prisoners who died while their request was pending and, for each, the amount of time that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence;
(I) the number of Bureau of Prisons notifications to attorneys, partners, and family members of their right to visit a terminally ill defendant as required under paragraph (2)(A)(ii) and, for each, whether a visit occurred and how much time elapsed between the notification and the visit;
(J) the number of visits to terminally ill prisoners that were denied by the Bureau of Prisons due to security or other concerns, and the reasons given for each denial; and
(K) the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a sentence reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the request was first received by the Bureau of Prisons and the date the defendant filed the motion with the court.REF
The current iteration of Section 3582(c) of Title 18 provides in part as follows:
(c) Modification of an imposed term of imprisonment.—The court may not modify a term of imprisonment once it has been imposed except that—
(1) in any case—
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, 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, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, 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; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.REF
The Commission now proposes to modify the sentencing guidelines and policy statements that would apply to Section 3582(c) petitions. The question is: How far does that law reach? The next section addresses that issue.
III. A District Court’s Revised Compassionate Release Authority
Any analysis of what the text of the First Step Act of 2018 means must begin—and ordinarily end—with its text.REF Numerous components of Section 603 of that law make it clear that the sentencing revision authority it contains addresses only the type of end-of-life release petitions that the BOP had mishandled since 1984. It does not go further and authorize a district court to resentence a prisoner anew or release him because of the sentences that others have received, the conditions of his confinement, or any other such reason.
Section 603(b) defines the term “terminal illness” as “a disease or condition with an end-of-life trajectory.”REF It directs the BOP no later than seventy-two hours after a prisoner is “diagnosed with a terminal illness” to notify his “attorney, partner, and family members that they” may ask a district court to modify the prisoner’s sentence.REF It requires the BOP no later than seven days after a prisoner is diagnosed with a terminal illness to “provide the [prisoner’s] partner and family members (including extended family) with an opportunity to visit the [offender] in prison.”REF Section 603(b) also instructs the BOP to process “the request” for relief submitted on behalf of a prisoner “who is physically or mentally unable to submit a request for sentence reduction” by the prisoner’s “attorney, partner, or family member.”REF It demands that the BOP “regularly and visibly post” in prisoner handbooks, other publications, and “medical and hospice facilities” information regarding the availability of relief. REF Section 603(b) also instructs the BOP to prepare an annual report for the Senate and House Judiciary Committees detailing a variety of information regarding the BOP’s implementation of those requirements, including “for each request, the number of prisoners who died while their request was pending and, for each, the amount of time that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence.”REF Finally, Section 603(b) requires the BOP to inform Congress annually regarding the number of notifications and visits that occurred regarding “a terminally ill [prisoner],” and the number of occasions in which the BOP denied “visits to terminally ill prisoners” for security or other reasons.REF Section 603 is literally brimming with references to the problem created by BOP’s failure to afford terminally ill prisoners the opportunity to face the abyss without being surrounded by prison guards. In short, Section 603(b) carried forward the tradition of showing compassion for a dying prisoner by releasing him from a penitentiary before the completion of his sentence to enable him to cross over in the company of whatever family and friends he might have on the outside or at least to die a free man.REF
Closely related to Section 603(b) is its companion subsection, Section 603(a).REF Section 603(a) reauthorized and amended the Second Chance Act of 2007.REF That statute was originally designed to ease the release from Bureau of Prisons facilities to home confinement or medical-care facilities of “elderly offenders” until “the expiration of the prison term to which the offender was sentenced.”REF Section 603(a) added to that act a provision also allowing for the release of an “eligible terminally ill offender,” someone who has been determined by a BOP-approved physician to be “diagnosed with a terminal illness” or is “in need of care at a nursing home, intermediate care facility, or assisted living facility” and was not convicted of a crime of violence or certain specified offenses.REF When read together with Section 603(b), Section 603(a) reinforces the conclusion that Congress sought to limit early release to offenders who were approaching the end of their lives. In fact, Section 603(a) is more restrictive than Section 603(b), because the former exempts certain offenders, such as violent criminals or sex offenders, from its early release authorization.REF
What that text does not say—and sometimes that is probative tooREF—is that the federal district courts are now open for the business of resentencing offenders, commuting their sentences, and answering for themselves all of the questions that we would have expected Congress to answer—or even just to have debated or acknowledged—were it to have completely jettisoned the finality that sentences ordinarily receive under the Sentencing Reform Act of 1984. Consider the numerous issues that Congress would have needed to address if the First Step Act of 2018 were to have created a new second-look process. As I have previously explained:
There are different ways to structure a second-look system. Devising an appropriate option, however, would require Congress and the president to resolve a host of substantive and procedural issues. For example, who would perform the second look—the original sentencing judge, other Article III judges, Bureau of Prisons officials, an independent commission appointed for this purpose, or someone else? What standard(s) would the second-look decisionmaker apply to decide whether a sentence is too long and what, instead, would be a just punishment? Must the original sentence be “shocking to the conscience,” clearly unjust, simply unjust, or merely erroneous? Should a court give any weight to the president’s decision to reject a commutation petition? Would every prisoner be eligible for a second look or only ones serving longer than a particular term (say, ten years) or past a certain age (say, sixty-five)? Does every prisoner merit a second look or are there some crimes or offenders that do not? If the latter, which ones—espionage, violent crimes, sexual offenses, crimes against minors or the elderly, repeat offenders, and so forth? Could a second look modify a mandatory minimum sentence? What if that sentence is life imprisonment, the only sentence other than the death sentence for some federal crimes, such as murder in the first degree? How often could a prisoner apply for relief? Why limit a prisoner to only one shot? Should there be exceptions for remarkable acts in prison—say, saving a guard’s life, or donating a kidney—after a prisoner’s first application failed? Should a prisoner denied relief be allowed to appeal that decision? Should the government be able to appeal a reduction in a prisoner’s sentence? If so, what would be the standard of appellate review—clear error, abuse of discretion, or de novo? Would there be some form of post-release supervision similar to parole or supervised release? Can the decisionmaker impose conditions on the released prisoner? If so, what conditions? Suppose a released prisoner reoffends or violates a condition of his release. Can, should, or must the decisionmaker revoke his release? If not, the second-look mechanism is better than parole for prisoners, but not for the government, so why should the public be willing to go along with it? If yes, what is the difference between a second look and parole? I see none. If there is no distinction, why the charade? I could add more questions, but you get the point.REF
It is dubious in the extreme that Congress snuck a second-look provision or clemency power into a revision of the compassionate relief section of the Sentencing Reform Act of 1984 without making that approach clear or even addressing any of the issues noted above that one would expect Congress to discuss before throwing open final judgments to amendment. Yet, that is precisely what some people claim Congress did. According to former Justice Department Pardon Attorney Margaret Colgate Love, Section 603(b) is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention” that can be used as a second-look vehicle.REF How likely is it that Congress intended to create a “hidden, magical trapdoor” that would allow every prisoner to claim that his sentence is unduly long or his confinement unduly onerous? Nil. Does that matter? Yes. As Justice Scalia once put it, “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”REF That proposition is equally appropriate in the case of the First Step Act. In sum, what Congress did and did not say in Section 603 powerfully militates against transforming that provision into a broad remedial resentencing statute or a judicial commutation power.
To be sure, Section 3582(c) of Title 18 contemplates that district courts can release a prisoner before he or she completes the original sentence if there are “extraordinary and compelling reasons” justifying an early release. And, yes, Section 3582(c) contemplates that district courts can release a prisoner if he is 70 or more years old, has already served 30 years’ in prison, and the BOP finds that he does not pose a threat to the safety of an individual or the community. But those two scenarios share a “family resemblance” to each other.REF They speak to the traditional understanding of “compassionate release”—viz., releasing a prisoner from a penitentiary when he is (to steal a line from Bob Dylan) knocking on heaven’s door. The justifications proposed by prison reform advocates and now proposed by the Sentencing Commission for an early release are far removed from that scenario. That is important because the Supreme Court has made it clear on numerous occasions that courts should not try to smuggle adventurous interpretations of statutory provisions into anodyne terms. The Court made that point in 2000 in Food and Drug Administration v. Brown & Williamson Tobacco Corporation,REF the Court has reiterated that principle on several later occasions,REF and the Court made it again most recently in its 2022 decision in West Virginia v. EPA.REF Yet, as explained below, that is what the Sentencing Commission’s proposed guidelines revisions seek to do.
IV. The U.S. Sentencing Commission’s 2023
Amendments to the Grounds for a Prisoner’s Early Release
The Sentencing Commission has proposed several particular amendments revising the list of “extraordinary and compelling reasons” for an early release. The paragraphs below address whether those amendments are consistent with the Sentencing Reform Act of 1984, as modified by the First Step Act of 2018.
1. The first proposed guidelines revision would make the overall list of “extraordinary and compelling reasons” for early release into a “Sentencing Guideline,” rather than as a “Policy Statement.”REF It is unclear whether a revision like that makes a difference as to the substance of the release justification, and the Commission’s proposal does not suggest that there is one. After all, in 1993 the Supreme Court ruled in Stinson v. United States that the Sentencing Commission’s commentary interpretating its guidelines should be treated in the same way as an agency’s construction of its own regulations: namely, as the Supreme Court held in Bowles v. Seminole Rock & Sand Co., an agency’s reading of its own rules is of “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”REF As relevant here, the rule would be that the Sentencing Commission’s commentary on the guidelines should be deemed binding absent a conflict with the guidelines’ text.REF Under Stinson, there would seem to be no material difference between a Sentencing Guideline and a Policy Statement.REF
Perhaps the Commission proposed this change because of post-Stinson developments in administrative law. Since the Supreme Court decided Stinson, the issue of what weight, if any, a court should give to an agency’s interpretation of its own rules has been the subject of enormous controversy. Numerous commentators have argued that the Seminole Rock canon of regulatory construction on which Stinson is based is mistaken and should be abandoned.REF The Court granted review to redecide that issue in Kisor v. Wilkie,REF but that case did not produce a majority opinion resolving the matter.REF The Court has not returned to it since then, and it remains a live issue.
In my opinion, an agency’s interpretation of its own rules should be subject to de novo review in the courts. An agency’s interpretation should be treated with the same respect that a court would afford the views of a scholar such as John Henry Wigmore or Arthur Corbin, but a court must nevertheless independently decide whether an agency’s interpretation of a rule is the correct one.REF Perhaps the Sentencing Commission feared that a Supreme Court decision overturning Seminole Rock and Stinson would eliminate the deference that a court would afford the Commission’s commentary. The Commission, however, has not offered that explanation.
2. The second proposed revision would add two new categories of medical conditions qualifying for an early release: (a) one for conditions that require long-term or specialized care that is not being, or cannot be, timely provided, but that would not qualify as a terminal illness; (b) the other—which could be called the Covid-19 justification—is for the outbreak of an infectious disease or declaration of a public health emergency posing an increased risk of “severe medical complications or death” if not mitigated in an adequate or timely manner.REF Those proposals go too far, however, because the circumstances they seek to address are well beyond traditional sentencing factors.
Proposed Amendment 2 addresses the site of a prisoner’s confinement and the conditions of his medical care. It would empower a district court to shorten a prisoner’s sentence if the court finds that doing so is necessary to safeguard a prisoner’s health. Neither one is a feature of the sentencing process that Congress entrusted to district courts and the Sentencing Commission.
On the contrary, Section 4001 of Title 18 vests in the U.S. Attorney General “[t]he control and management of Federal penal and correctional institutions, except military or naval institutions,”REF and Section 3621 of that title vests the U.S. Attorney General and BOP Director with the power to decide where a prisoner should be confined.REF In fact, Congress specified that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”REF The Attorney General and BOP Director also have the responsibility to ensure that a prisoner receives appropriate medical care, as both the Constitution and federal statutory law require.REF Section 4051(h)(1) is quite explicit in that regard, stating that “[t]he [BOP] Director shall ensure that all prisoners receive adequate health care.”REF The Sentencing Commission lacks the authority to substitute a district court’s prisoner health-care judgments for those of the specified Executive Branch officials. Instead, Congress gave the Commission the ability to offer recommendations in that regard. The Sentencing Reform Act of 1984 specifies that “[t]he Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations”—not, I should add, a Sentencing Guideline, Policy Statement, or other commentary—“concerning maximum utilization of resources to deal effectively with the Federal prison population.”REF
This proposed amendment would substitute the judgment of a district court for that of the Attorney General and BOP Director, which exceeds the Sentencing Commission’s guidelines-setting authority under the Sentencing Reform Act of 1984. In that law, as the Supreme Court noted in Mistretta and Neal, the Sentencing Commission cannot promulgate guidelines that conflict with any act of Congress.REF The First Step Act of 2018 did not modify those laws, nor does it allow a court to alter the place of a prisoner’s confinement by releasing an offender if the court believes that the Attorney General or BOP Director has made an incorrect judgment about a prisoner’s health. Though well intentioned, this proposal exceeds the Sentencing Commission’s authority.
3. Proposed Amendment 3 would revise the “Family Circumstances” category in three ways: (a) it would treat an adult child in the same manner as a minor if the adult is “incapable of self-care because of a mental or physical disability or a medical condition,” (b) it would allow for release of a prisoner to care for an incapacitated parent if the inmate is the “only available caregiver,” and (c) it would treat “any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member” for purposes of early release.REF That proposal takes a step down a path that has no non-arbitrary end.
The traditional compassionate release justification for an early release is that the prisoner soon would die. A major problem with this commission proposal is that it begins a game of dominoes that has no end in sight other than the release of virtually every prisoner. How should a court decide whether someone outside of prison is “similar in kind to a family member”? Through the prisoner’s own declaration? (“He is my life-long and best friend.”) Through expert opinion? (“John Doe Prisoner and John Doe Civilian are emotionally close.”) If so, whose “expert opinion” counts? A psychiatrist? A psychologist? A sociologist? A member of the public? The outsider’s own opinion? Or should a court rely on visitor logs? If so, what number of visits count? If the “quality” of a visit counts, how is that measured? Either approach invites arbitrary decision-making. I could go on, but you get the point. This amendment starts the Sentencing Commission and the courts down a path that has but one result: any prisoner who knows someone on the outside that he, she, or a district court judge, with a straight face, could deem “similar in kind to a family member” would qualify. Federal law does not authorize that result.
4. Proposed Amendment 4 would add two new categories: (a) prisoners who have suffered serious bodily injury from physical abuse or sexual assault by a correctional officer while in federal custody, and (b) prisoners who are confined for a term of imprisonment that is “inequitable in light of changes in the law.”REF The first of those factors bears no relationship to the offense or offender criteria that the Sentencing Reform Act of 1984 directs the Sentencing Commission to consider when devising its guidelines.REF Assault of a prisoner by a federal correctional officer is a crime and should be treated in the same manner as every other crime. It might make sense to transfer a prisoner to a different facility if he or she is the victim of a crime, but that is a decision for the Attorney General and BOP Director to make, not a court. It also makes no sense to shorten a prisoner’s sentence for that reason. That basis exceeds the Commission’s authority.
As for the other ground added in Proposed Amendment 4: Put aside the utter indeterminacy of the term “inequitable.” While it makes sense for Congress to apply retroactively any sentencing amendments that would shorten a prisoner’s term of confinement, it is improper for the Sentencing Commission to make that judgment for Congress by presuming that every sentencing amendment must be applied retroactively if doing so would benefit a prisoner. Any such presumption would be inconsistent with the General Saving Act, Section 109 of Title 1, which provides that the repeal of an act does not automatically apply retroactively to eliminate any liability incurred under the prior law.REF That statute applies to the release provisions of federal law.REF Here, too, the Commission’s proposal exceeds its statutory authority.
5. Proposed Amendment 5 would create additional options for classifying a prisoner as eligible for an early release.REF In essence, the options would make a prisoner eligible for early release if he or she “presents any other circumstance or a combination of circumstances similar in nature and consequence to any of the circumstances” elsewhere identified or if, due to post-sentencing events, “it would be inequitable to continue the defendant’s imprisonment.” Again, the amorphous terms “similar in nature and consequence” and “inequitable” invite each district court to decide individually what factors justify an early release. They are but a lawyer’s trick, a way of authorizing district courts to resentence offenders as they see fit, just without the honesty of actually saying that. Congress rejected that approach in the finality provisions of the Sentencing Reform Act of 1984, and the First Step Act of 2018 did not undo what Congress did 34 years earlier.
The Sentencing Commission’s proposals might be reasonable ones for Congress to consider, but they exceed the authority that the Commission has to devise Sentencing Guidelines and Policy Statements.
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