Shaking off the dust
The renewed Sentencing Commission has six months to amend years worth of outdated guidelines concerning the compassionate release of incarcerated individuals
The United States Sentencing Commission returned to business after four years without quorum. The slate of entirely new Commissioners, an “unusual” yet “exciting” position for a federal agency to find themselves in, unanimously voted on Friday, Oct. 28, on the adoption of a list of priorities to be submitted to the federal register. Among these priorities are, crucially, the implementation of the First Step Act 2018 into the sentencing guidelines.
The United States Sentencing Commission is a bipartisan judicial agency responsible for establishing and amending sentencing guidelines. With various circuit courts interpreting the guidelines as binding law, the Commission heavily impacts the state of nationwide criminal justice and sentencing reform. The Commission’s four year interruption has left the circuit court system in disarray.
The most novel and important feature of the First Step Act 2018 was the allowance of incarcerated individuals to submit their own motions to the courts for compassionate release, without relying on the Bureau of Prisons to do so. This was a watershed moment in the history of sentencing reform; during the COVID pandemic, nearly 4,000 inmates were able to successfully apply for release. However, as the Act was never reflected in updated sentencing guidelines, judges in some circuit courts neglected to apply the guidelines to cases of compassionate release filed by individuals.
The meeting began with a jolting reminder of the work that has to be done: the adoption of the minutes from the most recent meeting on Dec. 13, 2018. This passed unanimously and was followed by a report of the Commission Chair, Mississippi District Judge Carlton Wayne Reeves. Reeves was confirmed on Aug. 4 alongside his six fellow commissioners: Laura E Mate, Claire McCusker Murray, Judge Luis Felipe Restrepo, Candice C Wong, Judge Claria Horn Boom (joining by phone), and Judge John Gleeson (also joining by phone).
The second and only other item of the agenda was the vote to adopt and register the Commission’s proposed priorities into the federal register. These priorities will guide the Commission in the process of submitting guideline amendments to Congress, which must be done by May 1, 2023. The implementation of the First Step Act 2018 is at the top of the list. This is critical for individuals seeking compassionate release, but also for those looking to meet the “safety valve” criteria.
The safety valve is a provision which allows certain incarcerated individuals serving mandatory minimum sentences to be released sooner than their sentence provides for. The criteria to be eligible for the safety valve used to be that individuals have no record of criminal history. The First Step Act changed this, allowing individuals with more than one criminal activity points to be eligible.
Judge Reeves also named the implementation of the bipartisan Safer Communities Act as a priority. This firearm legislation was signed into law in July and would increase penalties for certain firearms offenses. He also acknowledged the conflicts occurring between circuit courts as something the Commission wants to resolve: “the likelihood of compassionate release motions succeeding [has depended[ on the circuit or district in which they were filed. This suggests courts could benefit from clearer guidance from the commission.” Some advocacy groups are concerned about the possibility that the Commission will limit judicial discretion moving forward.
The tentative policy priorities were released to the public on Sept. 29, and the Commission received over 8,000 comments through the public comment deadline of October 17. Judge Reeves cited his gratitude for this “incredible” feedback. Among those to have submitted public comment on various policy points was FAMM (Families against Mandatory Minimums), a nonprofit advocating for sentencing and criminal justice reform.
In their letters to the Commission, FAMM recommended the implementation of the FSA 2018 provision for individual compassionate release filing in addition to the maintenance of “judicial agility.” They stated,“now that defendants can file their motions directly in court, courts need the tools to be able to respond when confronted with extraordinary and compelling reasons not addressed in the policy statement.”
In a public panel, General Counsel of FAMM, Mary Price, expressed, “it will be up to the Commission to craft a new applicable policy statement which is aligned with The First Step Act. The Commission is faced with a decision of whether to maintain the discretion that many judges currently have to determine what constitutes extraordinary and compelling reasons, or to constrain it.”
FAMM’s Deputy General Counsel, Shanna Rifkin, told The Des: “I am pleased that the Commission has finalized the priorities. But now the real work begins in negotiating the contours of the amendments to the guidelines. The way these amendments shake out will significantly impact federal sentencing practices, and I hope the Commission brings an open mind to the lessons of the past four years. Most notably, regarding compassionate release, that no guideline can fully predict the future, and yet judges have proven their ability to use their discretion in compassionate release motions to decide what is truly extraordinary and compelling.”
Judge Reeves said that the Commission would work toward the May deadline in a “deliberative, empirically based, inclusive manner.” The Commission received and will take into consideration comments from District Courts, members of Congress, federal public defenders and criminal defense lawyers, the Department of Justice and Homeland Security and other executive agencies, dozens of advocacy organizations and probation officers and many individuals who are currently incarcerated and their families.
Justice Reeves concluded his report saying that in the course of these considerations, the Commission “may disagree,” but “will not be disagreeable.” Following this meeting, final notice of the priorities will be entered into the federal register as the Commissioners continue work on the amendments.
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