Evolution of Federal Drug Sentencing to Compassionate Release

For John Bailey, achieving justice involved a long journey on both straight and winding roads with many obstacles along the way. But trying as it may have been, the odyssey ended by arriving at the sweetest of destinations – freedom.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant Thomas Bryant, Jr., Supporting Reversal.

Argument: Sentencing courts have broad discretion to modify a sentence under Section 3582(c)(1)(A)(i). Sentencing courts have authority to grant motions for compassionate release if the defendant does not meet one of the "extraordinary and compelling reasons" described by the Commission. Vesting sentencing courts with discretion to identify "extraordinary and compelling reasons" is consistent with the judge's role at an initial sentencing and does not open any "floodgates." The District Court's order should be reversed and the case remanded for further proceedings.

Coalition Letter to the Oregon Legislature's Senate Judiciary Committee regarding improvements to state compassionate release laws, as proposed in SB 835 (2021).

Para Familiares y Conocidos de Personas en Prisiones Federales

En repuesta a la pandemia global de COVID-19, el proyecto para liberación compasiva federal relacionado al COVID-19 fue establecido para las personas detenidas en las prisiones federales, que son mayor de edad o tienen condiciones médicas que lo dejan más vulnerable al COVID-19. Si su ser conocido está detenido en una prisión federal y es mayor de edad o tiene condiciones médicas que le deja más vulnerable al COVID-19, por favor llena el formulario. Desafortunadamente no podremos ayudar a todos pero estamos haciendo todo posible.

Information for Family Members and Loved Ones of Vulnerable People in Federal Prison

In response to the worldwide COVID-19 pandemic, the Compassionate Release Clearinghouse COVID-19 Project was created to help elderly and medically vulnerable people in federal prison seek early release from prison. If you are a family member of someone in federal prison who is elderly or medically vulnerable, please complete this questionnaire. Unfortunately, we cannot help everyone, but we are doing everything we can.

Successful Presentation of Compassionate Release Actions in Light of COVID-19, Including for the Foreign-Born Client with an Immigration Detainer

Representation of detained clients who are at high risk for serious health consequences if they contract COVID-19 involves a progression of actions. The authors provide an overview of how to seek compassionate release from both prison wardens and dis­trict courts. This discussion includes strategies for nav­igating an ICE detainer and other immigration law issues when clients are not United States citizens.

Brief of Amici Curiae Public Defender Service and National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: First, the D.C. COVID-19 Emergency Act authorized compassionate release for "extraordinary and compelling" reasons not specifically enumerated in the statute, including a prisoner's heightened vulnerability to COVID-19. Second, courts must consider all relevant evidence in assessing the defendant's vulnerability to COVID-19, regardless of whether the defendant's particular medical conditions have been identified by the CDC as clear risk factors for severe illness from COVID-19. Third, good time credit counts toward the percentage of the sentence served under the statute. Fourth, rulings on compassionate release motions are subject to ordinary appellate review for abuse of discretion.

FAMM, Washington Lawyers’ Committee, NACDL Launch Emergency Compassionate Release Effort-- In a massive pro bono effort, our groups are recruiting, training, and supporting lawyers who agree to represent individuals in federal prisons eligible for compassionate release and those at special risk due to COVID-19.

The First Step Act revised the federal compassionate release statute, 18 U.S.C. § 3582(c)(1)(A).

Presentation prepared by Peter Goldberger for a webinar on compassionate release based on the First Step Act of 2018

Order granting compassionate release: waiving exhaustion and granting compassionate release due to age, diabetes, hypertension, obesity; “When the Court sentenced Zukerman, the Court did not intend for that sentence to ‘include a great and unforeseen risk of severe illness or death’ brought on by a global pandemic.”

Order granting compassionate release grant for defendant serving 20-year mandatory-minimum sentence for drug distribution and unlawful firearm possession, due to diabetes, high blood pressure, and liver abnormalities, during COVID-19 pandemic.

Order granting compassionate release for drug defendant with 60-month sentence who had served only 8 1/2 months, citing hypertension, obesity, diabetes who had tested positive for COVID.

Order granting compassionate release for 45-year-old, diabetic, with hypertension and asthma, who had served 21 months of 60 month sentence despite lack of confirmed cases at prison.