As the COVID-19 pandemic continues unabated, federal courts throughout the country have been inundated with motions for compassionate release under 18 U.S.C. Section 3582(c)(1)(A) filed by federal prisoners. For decades, only the Bureau of Prisons, or BOP, could file motions under the statute. That changed in 2018 when Congress passed the First Step Act, which allows prisoners to file their own motions for compassionate release.

In United States v. Jones (No. 20-3701), the U.S. Court of Appeals for the Sixth Circuit recently resolved a key question regarding the First Step Act's effect on compassionate-release determinations: do the guidelines on what constitute "extraordinary and compelling reasons" for compassionate release that apply when the BOP files a motion also apply when a prisoner files his own motion? The court held the answer is no. Rather, when a prisoner files his own motion, a district court has "full discretion" to define the phase "extraordinary and compelling." The Sixth Circuit's decision likely will aid prisoners seeking compassionate release in the circuit.

For Decades, Compassion in Name Only

The compassionate release statute, Section 3582(c)(1)(A), has existed for over 35 years. For nearly as long, however, only the BOP could file a motion on a prisoner's behalf. Even if the BOP wrongfully denied a prisoner's request to file a motion, the prisoner could not file his own motion with a court. In practice, the BOP rarely used its authority, denying the vast majority of requests it received from prisoners.

In 2018, Congress passed the First Step Act. Among other things, the First Step Act amended Section 3582(c)(1)(A) to allow prisoners to bring their own motions if the BOP denies or delays acting on their requests. A prisoner must make four showings to qualify for relief under the amended statute:

1. he has either exhausted his administrative remedies within the BOP or at least 30 days have elapsed since the warden of his facility received his request, whichever is earlier;
2. "extraordinary and compelling reasons" warrant a sentence reduction;
3. a sentence reduction "is consistent with applicable policy statements issued by the Sentencing Commission;" and
4. a sentence reduction is warranted after considering any applicable sentencing factors under 18 U.S.C. Section 3553(a).

What Are Applicable Policy Statements?

The First Step Act led to a new question for courts: what are "applicable policy statements issued by the Sentencing Commission?" There was one obvious candidate: Section 1B1.13 of the U.S. Sentencing Guidelines, the Sentencing Commission's policy statement regarding Section 3582(c)(1)(A).

The Sentencing Commission issued Section 1B1.13 in 2006, years before Congress passed the First Step Act. Its main text largely parrots the text of the pre-First Step Act statute and contemplates only motions filed by the BOP. The application notes to Section 1B1.13 describe three relatively narrow circumstances in which extraordinary and compelling reasons exist, such as when a prisoner is suffering from a terminal illness. The application notes also include a catchall for circumstances that the BOP determines are extraordinary and compelling.

The Sentencing Commission has not amended Section 1B1.13 to reflect the new reality that prisoners may file motions on their own behalf, and courts have divided on whether and how to apply Section 1B1.13 when a prisoner brings his own motion. Some courts have held Section 1B1.13 and its application notes tie their hands. If a prisoner's circumstances do not fall into the categories described in the application notes, those courts conclude they do not have discretion to determine if other extraordinary and compelling reasons warrant release.

Other courts have held that, given the Sentencing Commission's failure to update Section 1B1.13 to reflect the First Step Act's changes to the law, Section 1B1.13 does not constrain their assessment of whether extraordinary and compelling reasons exist. In other words, those courts conclude they have discretion to determine what constitutes an extraordinary and compelling reason. Unsurprisingly, courts in this camp have been much more likely to grant motions for compassionate release related to COVID-19.

Sixth Circuit: Section 1B1.13 Is Not Applicable to Motions Filed by Prisoners

Jones finally resolved the question whether Section 1B1.13 is an "applicable policy statement" when a prisoner files his own motion for compassionate release. Following the Second Circuit's lead, the court held that the First Step Act made Section 1B1.13 inapplicable in such cases. Rather, "in cases where incarcerated persons file motions for compassionate release, federal judges may skip [consideration of applicable policy statements] and have full discretion to define 'extraordinary and compelling' without consulting the policy statement Section 1B1.13."

The court reasoned the text of Section 1B1.13 compelled this result. On its face, the policy statement is predicated on the BOP's filing a motion for compassionate release. It does not apply to motions filed by prisoners. Accordingly, although Section 1B1.13 survives the First Step Act, it applies only to motions brought by the BOP.

Congress's policy in enacting the First Step Act also supported the court's holding. "Enforcing the black letter of" the application notes, the court explained, would "limit district courts to 'extraordinary and compelling' reasons that the BOP has defined." But doing so "would reflect a bygone era that Congress intentionally amended in the First Step Act." Given Congress's desire to expand the availability of relief, "it would make little sense for the courts to operate as if the BOP remains the sole gatekeeper of compassionate release."

The court also found support in a 2016 amendment to Section 1B1.13's application notes, in which the Sentencing Commission broadened its guidance to the BOP on what should qualify as an extraordinary and compelling reason based on concerns about the BOP's implementation of its compassionate-release program. Limiting courts to the BOP's definition of "extraordinary and compelling" would "ignore the Sentencing Commission's grounds for augmenting Section 1B1.13's application notes."

Accordingly, until the Sentencing Commission amends Section 1B1.13, courts in the Sixth Circuit need not consider the policy statement when ruling on compassionate-release motions filed by a prisoner. They can independently determine whether extraordinary and compelling reasons warrant compassionate release.

Although its effect remains to be seen, Jones likely will help prisoners secure compassionate release, particularly in cases in which the prisoner is at uncommonly high risk of severe illness or death from COVID-19 but not presently suffering from a condition that would otherwise support compassionate release under the application notes to Section 1B1.13.

Charlie Quigg, an associate with Warner Norcross + Judd, focuses his practice on complex civil and criminal matters.