By Daphne Ho, Emily Saroyan and Leila Katibah
WASHINGTON, DC – The U.S. Sentencing Commission late this week proposed revisions for The First Step Act of 2018 that appear to impact numerous federal prison guideline amendments—one revision involves the concept of a compassionate release, which could be utilized without having the Director of the Bureau of Prisons make a motion.
Compassionate releases are special cases that allow for an early form of release for inmates who have “extraordinary” reasons, including their age or medical condition. The revision also pushed toward amending the circumstances of how compassionate release should be defined by the Commission.
Among the reasons include terminal illness, suffering from a serious physical or medical condition, suffering from a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process.
The proposed amendment adds to the conditions that a prisoner has a condition that “diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover,” or the “defendant is suffering from a medical condition that requires long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that is not being provided in a timely or adequate manner.”
The “defendant presents the following circumstances—the defendant is housed at a correctional facility affected or at risk of being affected by an ongoing outbreak of infectious disease…an ongoing public health emergency declared by the appropriate federal, state, or local authority…the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency…such risk cannot be mitigated in a timely or adequate manner.”
The Commission noted the “defendant” must be at least 65, “experiencing a serious deterioration in physical or mental health because of the aging process; and has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.”
Prisoners can also be released early in the event, notes the Commission, of the “death or incapacitation of the caregiver of the defendant’s minor child or minor children the defendant’s child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition (and) incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.”
Judge Carlton W. Reeves, the Chair of the Commission, noted in a Commission statement that during the COVID-19 pandemic many district courts have been permitting compassionate release even with the lack of a Commission quorum.
The First Step Act also focuses on the eligibility of “safety valve” which is a form of relief for mandatory minimum penalties involving offenders who have a greater criminal history. Several changes were advised by the Commission to update the law as well as shifting to adjust the 2-level reduction guideline of drug trafficking that is involved with the safety valve.
Because the Commission is responsible for responding to major legislation related to federal crimes, it also admitted it voted to publish an amendment to implement the Bipartisan Safer Communities Act, a firearms legislation that was proposed after a mass shooting at Robb Elementary School in Uvalde, Texas.
The Bipartisan Safer Communities Act would direct the Commission to increase penalties for certain firearm offenders, such as straw purchasers, or people who purchase a gun for an individual legally prohibited from firearm ownership or who does not want their name associated with the transaction.
In addition to the Bipartisan Safer Communities Act, the Commission said it has published a series of amendments regarding criminal history rules.
These amendments entail the reconsideration of “status” points for the accused who commit an offense after being convicted of a separate crime, the treatment of the accused with zero criminal history points, and the impact of prior misdemeanor offenses such as marijuana possession.
In response to judges’ numerous complaints about the complicated, categorical series of legal tests used to determine if a conviction qualifies an offender for enhanced penalties, the amendment also presents an alternative approach.
“Judges are far too often flummoxed by how to apply the categorical approach,” stated U.S. District Judge Reeves at the USSC’s first public meeting of 2023. Judge Reeves noted an alternative to the categorical approach will be discussed further in detail by the Commission, warranting a future public hearing on the matter.
The Commission has listed as its main goals the reduction of “sentencing disparities and promote transparency and proportionality in sentencing,” as described on its website.
In efforts to advance these obligations, the Commission has opened itself for public comment regarding its approach toward certain judicial issues. These include (but are not limited to) cases regarding sexual abuse, communication between court circuits with conflicting decisions, and justifications for acquitted sentences (a practice deemed controversial by many).
When the Commission opened a submission portal for public comment in October 2022, it claims more than 8,000 comments were received.
During this time, the organization finalized which issues it sought to prioritize for reform and adjustments. This recent proposal publication is a direct result of the October meetings.
Reeves encourages people to utilize this channel of communication as a means to improve the proposals and evaluate the organization’s performance. This submission portal will be open for 60 days as of Jan. 12.
Throughout this period, the Commission said this week it will schedule and livestream public hearings to showcase testimonies from various experts, all of which can be found on its website.
