United States Sentencing Commission to Implement First Step Act w/Focus on Compassionate Release

Published 10:07 am Friday, October 28, 2022

WASHINGTON, D.C. — The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023.  Among its top priorities is implementation of two significant changes made by the First Step Act of 2018.

The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion.  This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants.  At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results. (Read the Commission’s Compassionate Release Report.)

“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission.

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties.  The Act expanded eligibility to certain offenders with more than one criminal history point.  The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs.  “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

A complete list of final priorities may be found on the Commission’s website at www.ussc.gov and in an upcoming edition of the Federal Register.