How Does The First Step Act Impact Compassionate Release?
The First Step Act included several important parts. It made the Fair Sentencing Act’s changes to cocaine sentencing retroactive. It also create a Time Credits Program that incentivizes participation in productive activities and evidence-based recidivism reduction programming. These parts have gotten some (but not enough) media attention. But the impact of the First Step Act on compassionate release was just as important and hasn’t received any attention at all.
What does the First Step Act say about compassionate release?
Before the First Step Act became law, people in BOP custody couldn’t request a compassionate release. Instead, only the BOP Director could. Unsurprisingly, the BOP didn’t grant a lot of compassionate releases. According to a 2018 article from The Marshall Project, for example, the BOP only granted 312 out of 5,400 applications from 2013 to 2017. During that same time period, 266 — almost the same amount — of the applicants for compassionate release died.
But the First Step Act changed the compassionate-release law (18 U.S.C. § 3582(c)(1)(A)) to allow those in BOP custody to file for compassionate release on their own. The only catch is that they must exhaust their administrative remedies first or wait 30 days until the warden fails to act on their request. Then, the compassionate-release law allows courts to “reduce the term of imprisonment” or “impose a term of probation or supervised release with or without conditions….”
When can courts grant applications for compassionate release?
Even though the First Step Act made it easier to file for compassionate release, compassionate-release applications are still an uphill battle. Courts can only grant compassionate-release applications when there are “extraordinary and compelling reasons” to do so. The law doesn’t define the phrase “extraordinary and compelling reasons” though. So, courts may (but are not required to) turn to policy statements from the Sentencing Commission when defendant’s ask for a compassionate release.
You might think that the COVID-19 pandemic would be enough to meet the “extraordinary and compelling reasons” requirement. For the most part, it hasn’t been. And, now that there is a vaccine, courts deny almost every request for compassionate release under the First Step Act. If you’re vaccinated, they say you’re not at risk of contracting COVID-19. If, on the other hand, you are vaccinated, courts say that your failure to get vaccinated is the problem.
But, if courts conclude that “extraordinary and compelling reasons” exist, they then must consider several factors as well. Those factors include the following:
- “the nature and circumstances of the offense,”
- “the history and characteristics of the defendant,”
- “the need for the sentence imposed” and
- “the kinds of sentences available[.]”
If the offense was serious, the defendant has a lengthy record or the defendant hasn’t served a large portion of the sentence, courts probably won’t grant a compassionate release.
The First Step Act allowed those in BOP custody to ask courts for a compassionate release. Before the First Step Act, only the BOP Director could ask for compassionate releases. Now, incarcerated people can too. Unfortunately, this hasn’t led to that many compassionate releases. But, even if courts grant just one out of every 100 requests they receive, that’s thousands more than the BOP would.