Since the First Step Act was passed on December 21, 2018, 51 requests for compassionate release have been granted in the first half of 2019, compared with only 34 total in 2018. Judicial review of compassionate release requests is working, but not for everyone. Federal Sentencing Guidelines remain outdated, and frustrate attempts by judges to cohesively interpret the compassionate release provisions. An update to these guidelines is crucial to the fair and equitable implementation of compassionate release that allows for individual sentences to be reduced when the justifications for continually holding them behind bars have greatly dissipated.

The First Step Act, touted as significant bi-partisan criminal justice reform, changed the ways that federal prisoners can petition for a reduction in their sentence, more commonly known as “compassionate release.” Prior to the adoption of the First Step Act, the Bureau of Prisons often exercised its gatekeeping role to prevent federal prisoners’ petitions for release from ever getting in front of courts. The Bureau rarely granted petitions and there was no right of the prisoner to appeal. In fact, Human Rights Watch sharply criticized the current legislation regarding compassionate release in 2012, calling it “conspicuous for its [compassionate release] absence.”

Now, under the First Step Act, prisoners are permitted to bring a motion to the court on their own behalf. The prisoner must first either 1) exhaust administrative remedies with the Bureau of Prisons, or 2) have a compassionate release motion pending before the Bureau of Prisons for at least thirty (30) days without receiving an answer. Prisoners may be released for extraordinary and compelling reasons. Alternatively, the prisoner may also be released if they are at least 70 years of age, has served at least 30 years in prison, and the Director of the Bureau of Prisons has determined that they are not a danger to the safety of the community.

The United States Sentencing Commission adopted a policy statement, Federal Sentencing Guideline §1B1.13 to describe what may constitute extraordinary and compelling reasons under the statute. Critically, these guidelines were adopted long before the First Step Act was passed. These guidelines have not been updated to reflect the new statutory scheme and, thus, have multiple points of conflict with the statute. This has led courts in a multitude of directions in determining how the statute and guidelines are to be read together appropriately. These reasons include terminal illnesses or other serious medical conditions, family circumstances under which the prisoner is the only caregiver for a dependent child or incapacitated spouse, and a catchall “other reasons” clause, allowing for discretion to be given to the Director of the Bureau of Prisons and the reviewing court, which is a live question in the lower courts. Additionally, when determining whether a prisoner qualifies for compassionate release, the reviewing court is instructed to review the 18 U.S.C. §3553 sentencing factors to ensure that such prisoner is “deserving” of release.

According to experts, some provisions of the First Step Act have been highly successful, yet others have faced delays, uncertainty, and uneven implementation. Largely, the amended compassionate release provision is working. Many prisoners have been released via the judicial review mechanisms that were previously denied to them by the Bureau of Prisons. However, the compassionate release provision’s success is largely targeted at one specific type of petition: compassionate release for a serious medical condition or terminal illness.

Under the prior system, nearly all of the compassionate release petitions that the Bureau of Prisons granted were because the inmate had a terminal illness, typically some type of cancer. The vast majority of compassionate release petitions that have been granted by the courts have been for similar reasons. This consistency is likely due to the fact that the Sentencing Commission policy statement has not been updated. The use of this old statement by courts has lead to releases for prisoners that the Bureau of Prisons would have been more likely to release under the old statutory scheme anyway. Additionally, the use of the old policy statement has lead to starkly inconsistent and inequitable outcomes.

Consider the following cases: In United States v. Bucci, the defendant was serving a 151-month prison sentence for drug trafficking, money laundering, and tax evasion. The defendant had served approximately 120 months when he applied for compassionate release. The defendant argued that he was the only available caregiver for his terminally-ill mother. Judge Young, a District Judge of the District Court for the District of Massachusetts, agreed that the defendant’s circumstances were extraordinary and compelling, as defined by the statute, and granted him compassionate release to care for his mother. However, in United States v. Ingram, the defendant was serving a 94-month sentence for receiving child pornography and violating the terms of his pre-trial release. He had served approximately 86 months when he applied for compassionate release. The defendant also argued that he was the only available caregiver for his mother, who was, arguably, terminally ill. Judge Sargus, Chief Judge of the District Court for the Southern District of Ohio, denied the defendant’s motion for compassionate release, citing that “[m]any, if not all inmates have aging and sick parents. Such circumstance is not extraordinary.”

In both cases, the defendants were sentenced to relatively hefty prison sentences, and had served a large portion of those sentences. Both defendants presented identical circumstances, but one received compassionate release and the other was denied. Such is the state of the compassionate release provision under the First Step Act absent a sweeping update to the Sentencing Commission’s policy statement defining extraordinary and compelling circumstances. There is no reason that inmates with identical circumstances should be treated differently solely based on the jurisdiction in which their case is brought. Such unifying updates are necessary in order to bring the Sentencing Commission’s policy statement in line with the purpose of the amended compassionate release provision, which was not merely to take the decision out of the hands of the Bureau of Prisons and put it in the hands of judges, but to bring the practice of granting compassionate release petitions in line with our moral, ethical, and human rights obligations. Keeping prisoners behind bars who are aging, sick, dying, or have a societal duty, such as caring for a dependent child or terminally ill parent, that they are unable to meet due to their imprisonment is difficult to justify. The Sentencing Guidelines and statutory scheme must be harmonized so judges have less discretion to create justifications when there plainly are none.