As a Federal lawyer, I have been asked to comment on the proposed Amendment to the Federal Sentencing Guidelines regarding Compassionate Release. The Amendments with regard to Compassionate Release, are just one part of the overall proposed Amendments. However, I will address in this post only a summary of the proposed Amendments that relate to Compassionate Release. It should be noted that the proposed Amendments with respect to Compassionate Release, as well as all of the other proposed Amendments, have not yet been enacted. These represent the work of the Federal Sentencing Commission. However, it is expected that Congress will not amend or reject them, and therefore they will go into effect in November of this year (2023). I will be address all of the proposed Amendments in a series of posts. Below is a summary of just those proposed Amendments with address the issue of Compassionate Release only:
With regard to the issue of Compassionate Release, the Commission proposes to expand 1B1.13 in certain respects. Defendants will be permitted to file motions. In addition, and importantly, the medical circumstances that may qualify as bases would be expanded to include certain conditions that the BOP cannot sufficiently treat, as would certain public health emergencies or ongoing outbreaks of infectious diseases. The “family circumstances” that qualify would also be expanded. The ECR (i.e., “extraordinary and compelling reasons”) for certain individuals in custody who are victims of sexual or physical abuse committed by, or at the direction of prison authorities, would also be included. The Sentencing Commission has also explained that changes in the law may be considered an ECR if a person is serving “an unusually long sentence and has served at least ten years,” but only where the change in the law “would produce a gross disparity between the sentence being served and the sentence likely to be imposed” presently; and non-retroactive Guidelines changes would not be able to be considered by the courts. Apart from cases involving unusually long sentences, the Commission has provided that changes in the law cannot be considered by the court when determining whether ECRs exist, but can in fact be considered in a section 3553(a) analysis about the extent of a reduction. Finally, the Commission has made it clear that while rehabilitation cannot be an ECR on its own, it may be considered in combination with other factors. The other proposed Amendments will be addressed in a series of additional posts.
Written by MIchael Leonard
Leonard Trial Lawyers
Dated April 7, 2023