New Compassionate Release Guidelines Widen FSA’s Paths to Sentence Relief; Bureau’s Scheme of Ignoring Medical Neglect and Malfeasance About to Be Put to the Test: Eighth Circuit Case Follows Supreme Court’s BRUEN Attack for Extra Firearms Possession Penalties; Revisiting Interaction of FSA, SCA, and RDAP Credits;
by Derek Gilna, Director of Research
It is hard for the average person to fully grasp the positive impact of the First Step Act of 2018 (FSA). This landmark law provided for the first time multiple paths to the courthouse that did not rely on a 2255 or a Supreme Court decision. One measure of how effective it is (and how much the Bureau hates it) is how hard it can be to actually see a complete copy. The Bureau’s 200 attorneys have had to work overtime putting into place multiple schemes to water down Congress’ clear intent to substantially reduce the federal prison population.
Its biggest plus is that it gives federal district court judges the ABSOLUTE right to revisit a sentence based upon the (then) undefined “extraordinary and compelling” circumstances. Many (but not all) judges took full advantage of this to revisit previously harsh sentences, sometimes based upon COVID considerations, but also on many other factors. Prosecutors were often forced to argue that the mere fact of conviction disqualified you from relief, despite years of incarceration, extensive programming, family factors, and advanced age and poor health. (This put the DOJ in the contradictory position of essentially implying that the hundreds of millions spent of prisoner education and rehabilitation were a waste of money and that evidence of rehabilitation was unimportant.)
The 2023 Guidelines, set to go into effect November 1, 2023, less two months from now, destroyed most of the DOJ arguments against compassionate release, and put into play a host of new factors. According to the United States Sentencing Commission (USSC): “The amendment expands the list of “extraordinary and compelling reasons” in five ways to better account for the plain language of section 3582(c)(1)(A) and its legislative history, to reflect the reasons relied upon by many courts after passage of the First Step Act in the absence of a binding policy statement, and to account for recent experiences—including…(1) adds “Medical Circumstances” subcategories; (2) modifies the “Family Circumstances” category; (3) adds a “Victim of Abuse” category; (4) revises (expands) the “Other Reasons” category; and (5) adds an “Unusually Long Sentences” category, permitting consideration of non-retroactive changes in law in a narrow set of circumstances.”
If you are in a position to take advantage of these major sentencing changes, it only makes sense to take advantage of the experience and drafting skills of someone who graduated from law school in 1975, and who has also been a paid journalist since 1962.
The aforementioned “medical circumstances” category for relief is clearly based upon the thousands of complaints for substandard medical care, which has resulted in hundreds of fully-avoidable prisoner deaths, not to mention the unnecessary suffering forced upon helpless prisoners. Thus, it is important to “unload” upon the Bureau for its ongoing policy of deliberate indifference and neglect. From every institution we have heard detailed accounts of delayed medical appointments, mis-filled prescriptions, and alteration of medical record to lessen the severity of prisoner health complaints. In a previous phase of my professional career, I successfully sued several doctors for medical malpractice. Although under the best of circumstances filing a lawsuit against the federal government purely based upon medical neglect is difficult, time consuming, and expensive. However, when seeking compassionate release and a sentence reduction, you bypass all of those procedural roadblocks and a can put the Bureau on the defensive with a well-drafted petition. Then, once you are released, you can take steps to restore your health, and contemplate filing a civil suit.
As noted in a recent scholarly paper filed on this very subject, the authors of the study highlighted the various conditions-of-confinement challenges that can also be cited in a compassionate release petition:
“People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment — the most common vehicle through which people seek to redress these harms — presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering. For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.
“At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied. However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.
“In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment. These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences…” Extraordinary Punishment: Conditions of Confinement and Compassionate Release, by Meredith B. Esser, 92 FORDHAM L. REV. (forthcoming 2024.)
The courts are also not-so-slowly chipping away at the enhanced penalties for firearm possession for convicted felons, and 924c and 922g fact situations. In an August opinion with a negative result based upon some difficult facts, in Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment. In a rehearing en banc in US v. Jackson, Eighth Circuit Judge Stras convincingly argues that the broad criminal prohibition under federal law precluding persons with felony records from possessing a gun is constitutionally suspect after Bruen.: “By cutting off as-applied challenges to the federal felon-in-possession statute, see 18 U.S.C. § 922(g)(1), Jackson and Cunningham give “second-class” treatment to the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). Even worse, they create a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); United States v. Jackson, 69 F.4th 495, 501–02 (8th Cir. 2023). I dissent from the decision to deny rehearing en banc.
“Practices shortly after the Founding are consistent with the dangerousness rationale. See Bruen, 142 S. Ct. at 2136–37 (discussing the concept of “liquidation”). Of the states that protected the right to keep and bear arms, none disarmed non-dangerous felons. Cf. Handbook on the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862–63 (1925) (cataloging the earliest felon-in-possession laws in the states). You read that right, none.
“Even violent felons, as a class, were not disarmed until the early 20th century, nearly 150 years later. See Federal Firearms Act, ch. 850, §§ 1(6), 2(e), 2(f), 52 Stat. 1250, 1250–51 (1938). And it was only in 1961, just 62 years ago, that the federal government finally abandoned dangerousness as the litmus test for disarmament in enacting § 922(g)(1)’s predecessor. See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961); see also Range, 69 F.4th at 104. There is nothing about felon-dispossession laws that is longstanding, unless six decades is long enough to establish a “historical tradition” of the type contemplated by Bruen. Spoiler alert: it is not. See Bruen, 142 S. Ct. at 2156 (holding unconstitutional a century-old licensing regime).”
From one reader: “Is there a document or a chart that you can send out detailing examples as to how the FSA, SCA and RDAP can be used to calculate going home time with the assumption of being a minimum, medium and then those who are high, like a case study so that we can see assuming maybe SCA of three month increments up a year with one column assuming FSA and SCA and then FSA, SCA and RDAP.“ No, there is no such document, for several reasons. The short version is that the Bureau does retain some discretion in deciding HOW LONG you get Second Chance Act-funded halfway house time, but FSA has thrown long-standing policies and procedures into disarray, and staff either are unable or unwilling to reconcile the differences.
EVERYONE gets SCA halfway house time-lack of an address is not a reason for denial. If you lack an address, contact the local Salvation Army or religious organizations for assistance, and to get an address and defeat this illegal practice of hw house denial. RDAP sentence reductions MUST be given IN ADDITION TO SCA and FSA benefits. START NOW to document all of the errors staff are making, and be prepared to file a 2241 to clarify your rights, regardless of whether you COMPLETELY exhausted your remedies., to avoid the Bureau running out the clock.
Document as best you can staff malfeasance or indifference to following the law, as well as any threats and attempted intimidation or retaliation, which the courts-and I suspect Director Peters- take a dim view.