Published on: Friday, October 28, 2022

The United States Sentencing Commission met on Friday for the first time in four years with a full slate of new members, which chair Judge Carlton Reeves called a “very exciting” and “highly unusual” moment.

The Sentencing Commission 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.

The commission in a March report said there was “considerable variability” in applying the statute without updated guidance to reflect the new law. Among the federal courts of appeal, the highest grant rate for compassionate release was in the First Circuit at 47.5% and the lowest was in the Fifth Circuit at 13.7%, the commission said.

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.