When Congress passed the First Step Act in 2018, it extended to federal prisoners the right to file their own motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A). As COVID-19 ravaged prisons, sentencing courts received a massive influx of prisoner-filed compassionate-release motions. But because the United States Sentencing Guidelines and the relevant Application Note predated the First Step Act, and therefore made no mention of prisoner-filed compassionate-release motions, sentencing courts were unsure whether they had discretion to determine whether a prisoner presented “extraordinary and compelling circumstances” warranting compassionate release.
Every United States Court of Appeals to consider whether sentencing courts had discretion in evaluating prisoner-filed compassionate-release motions agreed they did. All but one. In United States v. Bryant, the Eleventh Circuit incorrectly interpreted the First Step Act, the Sentencing Guidelines, and the Application Note. Today, two Americas exist. Federal prisoners in forty-seven states may request compassionate release, and sentencing courts have the discretion to determine whether extraordinary and compelling circumstances warrant relief. Federal prisoners in Alabama, Florida, and Georgia may also request compassionate release, but the Bureau of Prisons, not sentencing courts, determines which reasons outside those enumerated in the Application Note are extraordinary and compelling.
This Article examines compassionate release’s history, critiques the Eleventh Circuit’s Bryant opinion, and proposes three avenues to return discretion to sentencing judges: the Sentencing Commission could amend the Application Note, Congress could legislate, and a prisoner could seek en banc review in the Eleventh Circuit challenging Bryant as wrongly decided.
Introduction
“[T]he judicial enterprise is a human enterprise, not a mechanistic one.”1 Indeed, “[f]or much of American history, judges had largely unregulated discretion to issue sentences within statutory limits.”2 As the COVID-19 pandemic engulfed federal prisons, federal judges were asked to exercise their discretion under 18 U.S.C. § 3582(c)(1)(A), the compassionate-release statute, and modify the sentences of prisoners they had previously sentenced. “But while the case for compassionate release of elderly, aging, or sick prisoners or prisoners who face family emergencies is easy, almost intuitive, to understand, it has proven hard to administer.”3 Compassionate release is an important discretionary tool in the sentencing court’s toolbelt. Although originally available only through a motion filed by the Director of the Bureau of Prisons (BOP), the First Step Act of 2018 (FSA) expanded access to compassionate release. Now, prisoners can file their own motions for compassionate release, a right they embraced during the COVID-19 pandemic.
But what to do about the regulation of compassionate release? The United States Sentencing Commission promulgated a rule years before prisoners could file their own compassionate-release motions. The rule, housed in an Application Note to the United States Sentencing Guidelines,4 clearly applies only to BOP-filed motions for compassionate release. Indeed, that is all it could cover because, until 2018, BOP-filed motions were the only compassionate-release motions. But now, with the FSA’s creation of prisoner-filed motions, courts must decide what to do with these prisoner-filed motions. Do sentencing judges have discretion to determine what constitutes an “extraordinary and compelling reason” for compassionate release? Or are they constrained by what the BOP says constitutes an extraordinary and compelling reason?
“To date, only one circuit court has adopted the . . . position that the . . . compassionate release criteria remain binding on district court judges’ ability to decide motions for compassionate release, regardless of who brings the motion.”5 In a 2-1 decision in May 2021, a panel of the United States Court of Appeals for the Eleventh Circuit staked out this lonely position.6 The majority in United States v. Bryant suggested that every other circuit had erred in interpreting the Sentencing Guidelines.7 Although the Eleventh Circuit was alone in its analysis of the Sentencing Guidelines, and although the issue created an extremely lopsided circuit split, the United States Supreme Court denied a petition for a writ of certiorari.8 So today, federal judges in Alabama, Florida, and Georgia cannot exercise their discretion to grant prisoner-filed motions for compassionate release based on compelling circumstances.
This Article analyzes the Eleventh Circuit’s split opinion in Bryant and proposes a broad interpretation of the compassionate-release standard to provide the most relief to inmates in need. First, we discuss the history of compassionate release, from the Comprehensive Crime Control Act of 1984 to the FSA and the COVID-19 pandemic’s clarifying focus on the compassionate-release issue. Next, we explain and critique the Eleventh Circuit’s decision in Bryant. Then, we outline the arbitrary negative consequences of the Bryant decision. Finally, we offer several proposals to remedy the disparity between Bryant and the rest of the United States.
Federal judges should not have to helplessly watch as prisoners they feel have a right to compassionate release remain imprisoned because of outdated language.
I. Background
A. A Brief History of Compassionate Release
It is hard to understand the modern compassionate-release mechanism, and, importantly, the scope of the federal courts’ role in the compassionate-release system, without some historical context. Compassionate release is a process in the criminal justice system that allows judges to release prisoners before they serve their entire sentences in “extraordinary and compelling” circumstances.9 Congress enacted the modern version of the federal compassionate-release program as part of the Sentencing Reform Act of 1984 (SRA).10 This statute was a companion of the Comprehensive Crime Control Act of 1984 (CCCA).11
The CCCA was “the product of a decade long bipartisan effort . . . to make major comprehensive improvements to the federal criminal laws.”12 Before 1984, judges had almost unfettered discretion in setting a sentence within the statutory limits for each offense.13 After a judge imposed a sentence, the Parole Commission would then determine how much time a prisoner served before being released on parole, so long as the prisoner served at least one-third of the judicially imposed sentence.14 Congress became upset with such unfettered judicial discretion in sentencing—and the results that ensued.15 Congress specifically noted:
[E]very day federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances. . . .
These disparities . . . can be traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence. This sweeping discretion flows from the lack of any statutory guidance . . . . These problems are compounded by the fact that the sentencing judges and parole officials are constantly second-guessing each other, and, as a result, prisoners and the public are seldom certain about the real sentence a defendant will serve.16
The CCCA contained twenty-three chapters, each transforming a range of areas of federal criminal law.17 Congress believed the existing sentencing system was rooted in an unworkable model of rehabilitation.18 Part of the changes, Section 218(a)(5), abolished federal parole and replaced it with a more limited and determined mechanism based on sentencing guidelines.19 The Senate report largely focused on the parole system’s problems.20 That said, Congress understood parole’s importance, so the CCCA created an exception, § 3582(c), the predecessor of the current compassionate-release provision.21 Section 3582(c) provided that:
[U]pon motion of the Director of the Bureau of Prisons, [a district court] . . . may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) . . . to the extent that they are applicable, if [the court] finds that . . . extraordinary and compelling reasons warrant such a reduction . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . .22
Congress intended § 3582(c) to operate as a “‘safety valve[]’ for modification of sentences” that would “assure the availability of specific review and reduction of a term of imprisonment for ‘extraordinary and compelling reasons . . . .’”23 Yet the original compassionate-release statute gave the BOP exclusive control over all paths to compassionate release. For the next three decades, any motion for a federal prisoner’s compassionate release had to be made by the Director of the BOP.24 This meant that the BOP could (and did) simply abstain from requesting compassionate release despite circumstances warranting the relief.25
Thus, for a federal prisoner to receive compassionate release, four things must have happened. First, the BOP had to move for compassionate release in federal court. Second, “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i) must have existed. Third, the sentence reduction had to be “consistent with applicable policy statements issued by the Sentencing Commission” as contemplated by the court. And fourth, the court must have considered whether the prisoner was a danger under 18 U.S.C. § 3553(a).26
There were also blind spots in the statutory scheme. For one, Congress never defined, or provided examples of, “extraordinary and compelling reasons” that might warrant a sentence reduction. Instead, when it enacted § 3582, Congress simultaneously required the Sentencing Commission to “promulgat[e such] policy statements.”27 This made fulfilling the second factor challenging. Congress only chose to preclude one factor from constituting an extraordinary and compelling reason: “[r]ehabilitation of the defendant.”28 Yet this factor was impermissible only when it was considered “alone.”29 Judges were free to consider it alongside other factors.
Fulfilling the third requirement was also complicated because the Sentencing Commission did not follow Congress’s commands for over two decades. This made the third requirement largely illusory. Indeed, it was not until 2007 when the Sentencing Commission issued its first policy statement outlining what constituted extraordinary and compelling reasons to modify a sentence.30 The examples provided by the Commission included “terminal illness,” “serious physical or medical condition,” “deteriorating . . . health because of the aging process,” “death or incapacitation of the caregiver of [or defendant’s only family member capable of caring for] the defendant’s minor child,” and “an extraordinary and compelling reason other than, or in combination with, the [other] reasons.”31 Section 1B1.13 of the Sentencing Guidelines thus articulated four categories of extraordinary and compelling circumstances: (1) the defendant’s medical conditions; (2) the defendant’s age; (3) the defendant’s family circumstances; and (4) other reasons.32 The fourth category is a catchall provision permitting further discretion in defining extraordinary and compelling reasons other than those identified by the BOP.
Between 1984—when Congress enacted the compassionate release statute in the SRA—and 2018—when Congress enacted the FSA—the BOP rarely used its power.33 In fact, the BOP only requested compassionate release for terminally ill inmates—largely with less than a year to live—despite no requirement in BOP procedures that its broad discretionary authority was to be exercised so narrowly.34
But in 2018, things changed.35 The FSA removed the BOP as the recalcitrant “gatekeeper of compassionate release.”36 Congress amended § 3582(c) to allow prisoners to file their own compassionate-release motions directly in the courts.37 This modified the original four-step framework into a new, three-step framework for prisoner-filed compassionate-release motions. First, extraordinary and compelling reasons must support compassionate release.38 Second, the court must find the reduction is consistent with the Sentencing Commission’s applicable policy statements.39 And third, early release must be consistent with the sentencing factors in 18 U.S.C. § 3553(a).40
Despite Congress’s advancing the ball, one nascent implementation problem remained. As contemplated by the statute, a sentencing judge must ensure “such a reduction is consistent with applicable policy statements issued by the [United States] Sentencing Commission.”41 “It took the [Sentencing] Commission over twenty years to publish its substantive definition of ‘extraordinary and compelling reasons.’”42 The Sentencing Commission identified four “extraordinary and compelling reasons” for compassionate release: (1) the defendant is suffering a terminal illness; (2) the defendant is over sixty-five years old, is “experiencing a serious deterioration in physical or mental health because of the aging process,” and “has served at least 10 years or 75 percent of the term of imprisonment”; (3) certain family obligations, such as “[t]he death or incapacitation of the caregiver of the defendant’s minor child . . . [or] [t]he incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver”; and (4) other reasons, noting, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with” the other listed reasons.43
This had not been a problem because, before Congress enacted the FSA, only the BOP could move for compassionate release.44 But with the newly created right for prisoners to file compassionate-release motions, the Sentencing Commission needed to revise its policy statement.45 Because of this quagmire, “the text of the Sentencing Commission’s policy statement still limits compassionate release to ‘motion[s] of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A).’”46 And the Sentencing Commission’s commentary still reflects the pre-FSA status quo: “A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).”47
So where did this leave the courts? Well, there now existed two discrete categories of compassionate-release motions. The first is the BOP-filed compassionate-release motions. These motions are so rare that, as of 2013, only about twenty-four defendants a year were granted compassionate release.48 The BOP-filed motions neatly fall under the Sentencing Commission’s policy statements on compassionate release—the statements that took “over twenty years to publish.”49
Then, there are the prisoner-filed compassionate-release motions authorized by the FSA. Enacted without revisions to the Sentencing Commission’s policy statements, the prisoner-filed motions were filed in a legal purgatory. Should the pre-FSA policy statement, the one that only contemplates BOP-filed compassionate-release motions, apply equally to the prisoner-filed motions? Put another way, are judges constrained to a BOP-approved definition of “extraordinary and compelling reasons” to justify compassionate release?50
Enter COVID-19.
B. COVID-19’s Impact on Compassionate Release and the Spike in Prisoner-Filed Compassionate-Release Motions
American prisons became “ground zero” for COVID-19.51 “The reasons why COVID infection was so acute inside criminal detention facilities are intuitive. Jails and prisons are under-funded, overcrowded, and populated by detainees who are disproportionately susceptible to illness.”52 Early on, public health experts explained how to minimize infection: social distancing, interacting with others outside, frequent handwashing, and wearing masks. “Yet for the incarcerated, taking these measures has proven close to impossible.”53 Naturally, inmates wanted out. What resulted were “thousands of compassionate release motions, most filed by offenders.”54 “Advocacy efforts . . . principally focused on those near the end of their sentence, pregnant individuals or those with underlying health conditions, and others who might qualify for compassionate release.”55 The chart below shows the motions for compassionate release filed between January 2020 and June 202156:
When the COVID-19 pandemic hit, there was an astronomical increase in the filing of compassionate release motions.
And of the granted motions for compassionate release (only 3,608 of 20,565—17.5%), nearly all of them (3,471 of 3,602—96.4%) were prisoner-filed, while only 32 of 3,602—0.9%—were filed by the BOP:57
The magnitude of this data is hard to comprehend. In March 2020, judges across the United States received forty-seven motions for compassionate release. In October 2020, just seven months later, judges received 2,009 motions for compassionate release: a nearly 4,200% increase in just a few months.
It is against this backdrop, with COVID-19 raging unabated and vaccines months away, and with district judges inundated with thousands of motions for compassionate release, that judges began to address the tension between the FSA’s prisoner-filed compassionate-release motions and the Sentencing Commission’s unrevised policy statement that only contemplated BOP-filed compassionate-release motions.
II. Understanding United States v. Bryant
A panel of the Eleventh Circuit considered two questions in Bryant. First, “whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement” found in Section 1B1.13 of the United States Sentencing Guidelines.58 Second, because the majority “conclude[d] that [Section] 1B1.13 is an applicable policy statement,” it needed to “determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A).”59
A. The United States Court of Appeals for the Eleventh Circuit’s Majority Opinion
Judge Brasher wrote the Bryant majority opinion, which was joined by Judge Luck. The majority began with a discussion of the history of federal sentencing.60 It recounted that “[f]or a long time, sentencing judges had nearly unbridled discretion, bound only by statutory minimums or maximums,” and that “[p]arole boards also had discretion to release a prisoner after he had served as little as one third of his sentence, obscuring at sentencing the actual amount of time that the defendant would serve.”61 These “drastic disparities” and the “uncertainty in sentencing . . . drove Congress to pass the Sentencing Reform Act of 1984.”62 “The SRA sought uniformity and honesty in sentencing” and did so by creating the Sentencing Commission “and delegat[ing] to it the power to create a comprehensive system of sentencing guidelines.”63 The majority correctly noted that “the SRA did not put district courts in charge of determining what would qualify as extraordinary and compelling reasons that might justify reducing a prisoner’s sentence.”64 “[T]he SRA made clear that a district court cannot grant a motion for reduction if it would be inconsistent with the Commission’s policy statement defining ‘extraordinary and compelling reasons.’”65
The majority conceded that “[i]t took the Commission over twenty years to publish its substantive definition of ‘extraordinary and compelling reasons,’” but said the delay “mattered little because Section 3582(c)(1)(A) allowed only the BOP to file those motions, and the BOP rarely did so. In fact, the BOP failed to file reduction motions even if a defendant’s reasons were extraordinary and compelling.”66
The discussion section begins with the theme that “[f]inality is ‘essential to the operation of our criminal justice system,’”67 particularly that “[d]eterrence depends upon [it.] . . . Rehabilitation demands [it.] . . . [And it] benefits the victim by helping [her] put the trauma of the crime and prosecution behind [her].”68 The majority explained that the compassionate-release statute is a “congressional act of lenity,”69 but that the statute “allows a sentence reduction only if ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’”70
“The answer to whether the Commission’s definition of ‘extraordinary and compelling reasons’ binds district courts is clear. Indeed, both the Supreme Court and [the Eleventh Circuit] have held that Congress’s consistent-with requirement makes the relevant policy statements binding on district courts.”71 As it must, the majority conceded that “parts of the current policy statement are in tension with the FSA.”72
As for the policy statement’s applicability, the majority wrote that “[w]e interpret a statute based on the ordinary meaning of its text when it was enacted.”73 The majority believed “the commonsense reading of ‘applicable policy statements’ includes U.S.S.G. § 1B1.13, no matter who files the motion.”74 It reasoned that “the substantive standards in 1B1.13 are clearly capable of being applied to defendant-filed reduction motions” and that “nothing about 1B1.13 make it less ‘capable of application,’ ‘relevant,’ or ‘helpful’ to defendant-filed motions than to BOP-filed motions.”75
Next, the majority looked to the context in which the policy statement was drafted, because “[t]hat context is vital to understanding what Congress meant by ‘applicable policy statements issued by the Sentencing Commission,’ because although a statutory phrase, ‘considered in isolation, may be open to competing interpretations,’ when it is considered ‘in conjunction with the purpose and context,’ often ‘only one interpretation is permissible.’”76 The majority saw “two important contextual factors here: the Commission’s statutory role in defining ‘extraordinary and compelling reasons’ and the way courts use the Guidelines every day.”77
The majority correctly stated that “[t]here is no question that 1B1.13 is the policy statement the Commission adopted to comply with [its] statutory mandate.”78 “In other words, the statutory context shows us that the Commission had an obligation to define ‘extraordinary and compelling reasons’ for all motions under the statute, and that the Commission did so in 1B1.13.”79
Next, the majority contended that “1B1.13 is ‘applicable’ in the same way anything else in the sentencing guidelines is ‘applicable’—it implements the relevant statute.”80 “A sentencing court must ask only what guideline the Commission has tied to the relevant statute; it is prohibited from looking at the ‘circumstances of a particular case’ to determine the ‘applicable guideline.’”81 “In other words, determining whether something is an ‘applicable guideline’ under the Sentencing Guidelines is resolved based on the statutory provision at issue and nothing else.”82 This means that “consistent with the structure of the Guidelines as a whole and with the Commission’s choice about how to structure its policy statements, an applicable policy statement for a sentence reduction is the one that corresponds with the reduction motion’s authorizing statute.”83 At bottom, the majority concluded that “[f]or Section 3582(c)(1)(A) motions the applicable policy statement is 1B1.13.”84
The majority then considers the statute’s purpose. According to the majority, “[i]nterpreting 1B1.13 as an applicable policy statement for all Section 3582(c)(1)(A) motions is not only a textually permissible interpretation, it is the better one. It both furthers the SRA’s purposes and effectuates other congressional sentencing decisions, such as mandatory minimums and retroactivity.”85 “The SRA’s purpose was to limit discretion and to bring certainty and uniformity to sentencing.”86 The majority reasoned that:
Interpreting 1B1.13 as inapplicable to defendant-filed Section 3582(c)(1)(A) motions would return us to the pre-SRA world of disparity and uncertainty. Except worse. Unlike a parole board—which could not reduce an imposed sentence until a defendant had served at least a third of that sentence—sentencing courts need wait only 30 days after imposing a sentence before granting a Section 3582(c)(1)(A) reduction. More concerning, sentencing courts are not bound by even the statutory minimums when granting Section 3582(c)(1)(A) motions.87
The majority explained that “[o]f course, ‘purpose . . . cannot be used to contradict the text or to supplement it,’”88 and “[w]e must not ‘engage in purpose-driven statutory interpretation,’”89 or “the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different [guideline] that achieves the same purpose,”90 but then said “a statute’s purpose, which itself must be derived from the text, is a constituent of meaning and can be helpful in understanding the ‘ordinary, contemporary, common meaning’ of the statute’s language.”91 In sum:
If the text could be read more than one way when considered in a vacuum, a statute’s purpose may reveal which reading is correct. And a textually permissible interpretation that does not frustrate a statute’s purpose is preferred over one that does. Here, the statute’s purpose supports our reading, even though it could not alone justify it.92
The majority then turned to “other general canons of statutory interpretation [to] bolster the understanding of 1B1.13 as an applicable policy statement for all Section 3582(c)(1)(A) motions, regardless of who files them.”93 These “other general canons” include the statute’s title and that “the same words will be interpreted the same way in the same statute.”94 The majority reasoned that “we should not interpret ‘applicable policy statement’ in a way that gives ‘extraordinary and compelling’—which is only used in the statute once—different meanings depending on who files a motion.”95 Then it explained that “what Congress chose not to change can be as important as what it chose to change” and that courts “recognize that a statute’s text often ‘reflect[s] hard-fought compromises.’”96 And although Congress knew the limited power the Sentencing Commission wielded, the constraints under which it operated, and how the policy statement controlled these motions, it
chose not to redefine that phrase, change the substantive standard for granting a motion, or modify a district court’s obligation to follow the policy statement. If Congress had meant to free district courts from following the Commission’s guidance for defendant-filed motions, “we would expect the text . . . to say so.”97
The majority then turned its focus to the other courts of appeals which had addressed the applicability of Section 1B1.13 to defendant-filed compassionate-release motions. It identified what it said were two errors the other circuits made: they misinterpreted the prefatory phrase of Section 1B1.13 and the repetition of that clause in Application Note 4; and they made purposivist points.
As for the prefatory language argument, the majority explained that the prefatory language “[u]pon motion of the Director of the Bureau of Prisons,” is “prologue. The prefatory part of the policy statement orients the reader by paraphrasing the statute as it existed at the time the policy statement was enacted. But the important operative provisions of the policy statement are found in the application notes.”98 The Application Notes “define ‘extraordinary and compelling reasons’ as being medical, age, family, or ‘other reasons.’ And they operate independently of the prefatory clause that has caused so much confusion in our sister circuits.”99
The majority charged that the other courts of appeals “give these clauses an operative meaning only by retconning them.”100 It said that “our sister circuits expressly interpret 1B1.13’s language anachronistically instead of consistently with its ordinary meaning when the Commission published it.”101 The majority acknowledged that:
When the Commission published 1B1.13, there was no such thing as a defendant-filed motion under Section 3582(c)(1)(A). As a procedural matter, only the BOP could file that reduction motion. It therefore makes very little sense to say that the policy statement distinguishes between a BOP-filed motion and some other kind of motion that did not exist when the policy statement was adopted.102
The majority then turned to the “purposivist points” it contended the other courts of appeals made. The other courts, it said, noted that the Sentencing Commission lacked a quorum, pointed to Congress’s purpose in passing the FSA and expanding compassionate release, and explained that Section 1B1.13 does not allow that congressionally intended expansion.103 But, the majority explained, “it is not our role to predict what the Sentencing Commission will do or what Congress wants it to do. Our role is to interpret the relevant legal texts and apply them as they exist.”104
B. Judge Martin’s Dissenting Opinion
Judge Martin sharply dissented.105 She began by saying that “[e]ach of the seven circuits that has considered the issue has held that the policy statement we consider here applies only to compassionate release motions filed by the BOP, as opposed to those filed by defendants on their own behalf.”106 In a footnote, Judge Martin pointedly said:
I have not found even a dissenting or concurring opinion among any of the circuit opinions deciding this issue that advocates for what the majority does here. As I understand it, that means my two colleagues in the majority are the only federal appellate court judges in the country to interpret the policy statement in the way they do here.107
Judge Martin then discussed the FSA and the sole Sentencing Commission policy statement addressing “extraordinary and compelling” circumstances (and its Application Note).108 “By its express terms,” Judge Martin explained, “the policy statement applies only to motions brought by the Director of the BOP.”109 “[T]his means the policy statement at issue here survives insofar as it applies to those motions brought by BOP. But BOP filed no motion here. Mr. Bryant filed his own motion for compassionate release, so this policy statement, and accompanying application note, simply are not ‘applicable’ to his motion.”110
Then, Judge Martin turned to the majority:
The majority says that, even though the policy statement expressly cabins itself to motions brought by the BOP Director, it is still an “applicable” policy statement. And this has the effect of limiting federal judges from considering anything other than what the BOP considers an “extraordinary and compelling reason” justifying compassionate release. Thus, the courts are confined to the footprint made by BOP. And again, the First Step Act was meant to address BOP’s poor record on allowing compassionate release.111
The majority “relies primarily on dictionary definitions of the word ‘applicable,’” but “[t]his interpretation fails to persuade for several reasons:”112
First, the majority’s dictionary-based theory about when a policy statement may be “applicable” flies in the face of the statement’s plain text that tells us when it is actually “applicable.” . . . .
Second, the majority’s definitional argument proves too much, and at the same time, too little. . . .
Third, in advancing its definitional argument, the majority asserts that “[t]here is no question that 1B1.13 is the policy statement the Commission adopted to comply with th[e] statutory mandate.” But again, the fact that the policy statement applies to some compassionate release motions doesn’t mean it applies to them all.113
Judge Martin also identified “the matter of fidelity to the text[,] . . . find[ing] it noteworthy that in insisting the policy statement is ‘applicable’ to Mr. Bryant’s motion, the majority has to blue-pencil the statement and application note to get around phrases that explicitly address the scope of the statement’s applicability.”114
The majority’s explanation that the “phrases confining [the policy statement] to BOP motions are merely non-operative ‘prefatory phrases’” had two errors, according to Judge Martin:115
First, turnabout is fair play. If these two phrases that conflict with the majority’s interpretation can be dismissed as non-operative, prefatory phrases, then why isn’t the same true of the phrase “[a]s determined by the Director of the Bureau of Prisons” in Application Note 1(D)? . . .
Second, even if these phrases could have been characterized as prefatory before enactment of the First Step Act, that characterization doesn’t work now that the First Step Act is law. These phrases no longer “paraphras[e] the statute.” At least, not the whole statute. Instead, the phrases still parallel the language in the provision that empowers BOP to file compassionate release motions.116
Judge Martin pointed to the Supreme Court’s decision in Bostock v. Clayton County, where the Court made clear that “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”117
Not only was the majority’s interpretation incorrect for these reasons, but Judge Martin also asserted that the interpretation results in an unlawful delegation of authority to the BOP.118 “Congress delegated the authority to determine the meaning of ‘extraordinary and compelling reasons’ to the Sentencing Commission, not BOP.”119
Before the First Step Act, Application Note 1(D) effected no illegal sub-delegation because only BOP could file a compassionate release motion. . . . But now, reading the Application Note in line with the majority’s interpretation, BOP is suddenly empowered to significantly restrain the universe of available “other reasons” for defendants seeking compassionate release on their own behalf. And Congress never gave BOP this authority.120
Finally, Judge Martin explained why “[t]he [m]ajority’s [p]urposivist [a]rgument [i]s [m]isplaced.”121 Judge Martin charged that:
The majority goes to great lengths to explain why its interpretation squares with the 1984 Sentencing Reform Act. But it does not explain the large regard it gives the purpose of this 1984 statute, in contrast with the little regard it gives to the purpose of the much more recent First Step Act.122
The majority “ignores the transformational intent and purpose of the First Step Act, the ‘most meaningful criminal-justice reform at the federal level in decades.’”123
First, the majority ignores that the Sentencing Reform Act, in abolishing the federal parole system, and the First Step Act, in eliminating BOP’s gatekeeping function over compassionate release, in fact advanced a common goal: keeping sentencing “within the province of the judiciary.” . . . .
Second, the First Step Act empowers defendants to seek compassionate release not only when BOP does not act quickly enough on the defendant’s request, but also when BOP altogether refuses to act.124
According to Judge Martin, “[t]hat tells us that Congress was concerned not only with BOP’s ability to timely review compassionate release requests, but also with its substantive judgment about what circumstances warrant compassionate release.”125
not severing anything from, or adding anything to, the policy statement. Instead, we are recognizing that district courts are bound by the Commission’s definition of “extraordinary and compelling reasons” found in 1B1.13 because, under our understanding of the statute, Congress said they are. That means that courts may grant defendant-filed motions that the BOP refuses to bring, but they must apply 1B1.13’s definition of “extraordinary and compelling reasons” in doing so.
Id. at 1262.
In closing, Judge Martin explained that Mr. Bryant “has devoted significant efforts to rehabilitate himself. The majority opinion defies the text of the First Step Act and the policy statement and undermines the monumental efforts Congress undertook to transform compassionate release.”126 Presciently, Judge Martin expressed her “fear [that] the majority opinion today sets our Court on a path, alone among Courts of Appeal, that will deprive Mr. Bryant and thousands like him in the states of Georgia, Florida, and Alabama of access to compassionate release.”127
III. Argument
A. The Majority Opinion in Bryant Produces Arbitrary Effects
Taking a second look at prison sentences was not something federal judges were used to doing. In fact, the law had long forbidden federal judges from taking those second looks, save extremely limited circumstances. This dynamic shifted drastically when President Trump signed the FSA into law in 2018. Section 603(b) amended § 3582(c)(1)(A) to allow prisoners to move for compassionate release on their own behalf.128 Section 3582(c)(1)(A) still requires that a sentence reduction be consistent with “applicable policy statements issued by the Sentencing Commission . . . .”129 At the same time, the Sentencing Commission had no indication Congress would allow prisoners to file their own compassionate-release motions—and Section 1B1.13 reflects that belief by repeatedly stating that it governs only BOP-filed compassionate-release motions.130
The Eleventh Circuit created an extremely lopsided circuit split when it decided in Bryant that Section 1B1.13 of the 2007 Sentencing Guidelines applies to prisoner-filed compassionate-release motions. This means courts must therefore give effect to Section 1B1.13’s restriction that only the BOP can determine what reasons beyond an inmate’s age, health, or family circumstances justify compassionate release, regardless of who filed the § 3582 motion.131 The Eleventh Circuit did more than just create a circuit split. This decision goes against the plain text of the statute and the context of compassionate release, and it creates arbitrary, adverse consequences that bind district courts in the Eleventh Circuit and illogically harm prisoners.132
1. District Courts in the Eleventh Circuit Lack Discretion to Determine Extraordinary and Compelling Circumstances in Prisoner-Filed Petitions
Under the FSA, the Sentencing Guidelines, and the Application Note, district judges have discretion to determine what constitutes an extraordinary and compelling circumstance warranting compassionate release. Yet the opinion in Bryant goes against the great weight of persuasive authority: ten other courts of appeals have confronted this question, and every single one came out the other way.133 The uniformity of opinions across the courts of appeals supports the proposition that analysis of the policy statement’s application to prisoner-filed motions for compassionate release is obvious.
There are nearly 16,000 federal inmates in the Eleventh Circuit.134 If these individuals had been sentenced in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, or D.C. Circuits, a district judge could make an individualized determination about whether his circumstances would qualify as extraordinary and compelling. Yet in the Eleventh Circuit, functionally only the BOP may request compassionate release for reasons other than those enumerated in the Application Note. This distinction is arbitrary.135
As discussed above, compassionate release’s history counsels a broad and permissive understanding of congressional intent. The FSA’s amendments to § 3582 show that Congress sought to expand the circumstances where federal judges could exercise discretion in considering compassionate-release motions.136 Congress concluded that compassionate release had not functioned as it was intended to under the BOP’s management.137 To remedy this, Congress explicitly sought to “[i]ncreas[e] the [u]se and [t]ransparency of [c]ompassionate [r]elease” by allowing prisoner-initiated motions.138
To be sure, Congress does still empower the Sentencing Commission to issue policy statements related to the appropriate use of compassionate release provisions under § 3582. At the same time, “the Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines . . . at any time.”139 Thus, the FSA’s amendment to § 3582 clearly can—and did—cause certain provisions of the policy statement to no longer have the same effect. Given the material changes to the compassionate release provision, the Sentencing Commission’s policy statement from 2007 no longer fits.
2. District Courts in the Eleventh Circuit Cannot Evaluate Changes in Law or Policy That May Constitute Extraordinary and Compelling Circumstances
District courts should have the discretion to evaluate changes in law which may now constitute extraordinary and compelling circumstances warranting compassionate release. Yet the majority opinion in Bryant forbids district courts from considering these changes. One example of how this discretion may play out is whether a district court may consider nonretroactive changes in federal law to constitute an extraordinary and compelling circumstance. To explain this circumstance more fully, we provide a brief example.
Through 18 U.S.C. § 924(c), Congress made it a crime to “use[ ] or carr[y] a firearm” “during and in relation to any crime of violence or drug trafficking crime” or to “possess[ ] a firearm” “in furtherance of any such crime.”140 A defendant convicted under this statute faced a mandatory minimum term of imprisonment of at least five years.141 Additionally, any “second or subsequent conviction” yielded a mandatory twenty-five-year sentence, to be served consecutively.142 Thus, defendants convicted of three counts of violating 18 U.S.C. § 924(c) would be sentenced to a mandatory term of at least fifty-five years in prison, as each conviction would be stacked one upon another—even if the first violation came in the same case as the second and third violations.143
The “stacking” practice led to severe sentences for many defendants. Stacking was often brought against individuals who never brandished or fired the weapon, and it was disproportionately brought against minorities as well.144 Congress recognized the manifest injustice in stacking when the FSA amended § 924(c)(1)(C)(i) to “[c]larif[y]” that the twenty-five-year penalty applies only to violations “that occur[] after a prior conviction” has become final.145 Yet Congress did not make these changes fully retroactive.146 This decision left open whether such a change in the law that was not made retroactive could be used as an extraordinary and compelling reason to seek a sentence reduction.
The gross disparity in sentencing under the old § 924(c), not just compared to what a defendant would be sentenced to under § 924(c) as it currently stands, but also against other serious offenses, is an extraordinary and compelling circumstance. For example, in 2018, the national average sentence for murder was 291 months, and the average sentence in district courts in the Eleventh Circuit was 393 months; the national average sentence for child pornography was 104 months, and the average sentence in district courts in the Eleventh Circuit was 111 months.147 Yet a getaway driver who neither brandished nor fired a weapon could be sentenced to a term up to and exceeding his natural life for multiple § 924(c) convictions.148 In fact, before the FSA, over two-thirds of all federal prisoners serving a life sentence were convicted of nonviolent crimes.149
Considering the principle that a sentence should be “sufficient, but not greater than necessary,”150 and the fact that, for many defendants, a sentence they would now receive may be less than half of the sentence they were given, courts have decided to take a second look at these sentences under the FSA’s amendments. Four circuits hold that such a gross disparity can constitute an extraordinary and compelling circumstance justifying compassionate release.151 Four other circuits, however, have come to the opposite conclusion, holding that a nonretroactive change in the law cannot be deemed an extraordinary and compelling circumstance.152
Bryant, however, punts this question to the Sentencing Commission. This is a mistaken conclusion, as this is a statutory interpretation question—left for judges alone. If the Sentencing Commission issued a policy statement, in each of the circuits that have held—as a matter of statutory interpretation—that § 3582(c)(1)(A) does not permit such a consideration, the courts in those circuits likely would simply hold that the policy statement violates the law and is invalid.
This would leave the Sentencing Commission in a position where its policy statements are not uniformly obeyed—which undercuts the mandate that courts follow the statements—or that they could only issue a policy statement that prohibits the consideration of such a factor. Yet this would also be incorrect. Nothing in the text of § 3582(c)(1)(A) grants the Sentencing Commission any power to prohibit considerations. Section 994(t) only grants the power to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied.”153 Thus, neither statute empowers the Sentencing Commission to say what cannot be considered extraordinary and compelling.
This also undercuts Congress’s and the Sentencing Commission’s clear manifestation that the first three categories of cases are not the only extraordinary and compelling reasons to grant compassionate release.154 Congress contemplated the need for § 3582, especially when “the sentencing guidelines for the offense of which the defend[ant] was convicted have been later amended to provide a shorter term of imprisonment.”155 Courts attempting to cabin judicial discretion seek to provide the BOP with power that neither Congress nor the Sentencing Commission has granted it, all the while undermining the FSA.
Furthermore, it also undermines Supreme Court precedent. As Concepcion v. United States—the Supreme Court’s most recent case interpreting the FSA—makes abundantly clear, efforts to undercut the FSA by creating extra-textual limits on resentencing considerations are not permitted.156 The Court in Concepcion made clear that the “only limitations” on considerations for judges are those in the Constitution or those that Congress has expressly set forth.157 Thus, although Concepcion is a crack case, the holding should benefit every federal prisoner moving for compassionate release on all possible grounds not expressly excluded by Congress or the Constitution—including those in the Eleventh Circuit.158
3. District Courts in the Eleventh Circuit Cannot Respond Nimbly to Crises
Alarmingly, this position precludes district courts from responding nimbly to crises like COVID-19. As of August 2022, more than 55,000 federal prisoners contracted COVID-19.159 That is nearly forty percent of all prisoners in BOP custody.160 The pandemic has killed prisoners at significantly higher rates than the general population.161 At one point in the pandemic, cases were nearly three times higher in federal prisons than in the general population.162 Yet in the Eleventh Circuit, only the BOP could ever determine that medical conditions that increase an inmate’s risk of contracting coronavirus, and the consequences from such contraction, constitute an extraordinary and compelling reason—even though courts outside the Eleventh Circuit have repeatedly found this to constitute an extraordinary and compelling circumstance.163 “To effectively curb the consequences of COVID-19 and future novel deadly infectious diseases in prisons, it may be prudent to lessen the degree to which the [BOP] or courts consider reasons for release to be ‘extraordinary and compelling.’”164
B. Proposal
1. District Courts Should Have Discretion to Determine What Constitutes Extraordinary and Compelling Circumstances for All Compassionate-Release Motions, Both Prisoner-Filed and BOP-Filed
The FSA’s amendments did far more than just alter procedural aspects of the compassionate-release process. It was a complete shift, expanding opportunities for compassionate release that could not have been imagined before its enactment. For the first time, prisoners could seek compassionate release themselves. Yet courts attempt to undermine such changes by reading the statute in a way that finds no support.
When a court is asked to resolve a question of statutory interpretation, it always begins “with the language of the statute.”165 The FSA contains explicit language that empowers judges to decide whether an extraordinary and compelling circumstance exists.166 The first two words of the provision are “the court,” and the last four are “if it finds that.”167 The language makes clear that Congress contemplated significant judicial discretion in making such a determination. And it serves an important purpose.168 The uniformity of this understanding is further borne out by the courts of appeals’s consistent application of the policy statements’ limitations to BOP-filed compassionate-release motions.169
Consider the now-repudiated § 924(c), which permitted imposing draconian, enhanced mandatory sentences under the practice of stacking.170 Both Congress and President Trump deemed stacked sentences under this provision so excessive that they revised the provision to ensure that individuals would not be put in those circumstances again.171 Arguably, there is not a factor more relevant to determining whether an extraordinary and compelling circumstance exists than new developments of law which bear on whether the current sentence reflects “the seriousness of the offense.”172 Nothing in § 3582 or any other part of the FSA limits what judges may consider to be an extraordinary and compelling reason justifying compassionate release173—especially because Congress has charged judges with the “need to avoid unwarranted sentence disparities” when deciding compassionate release motions.174 Congress would not have enacted two statutes with such commands that they work in unison if it did not want courts to use them.175
But even looking beyond the plain meaning of § 3582(c)(1)(A) to the congressional intent in enacting the FSA, we see that curbing district courts’ discretion thwarts Congress’s goals and leads to perverse results. Consequently, the Eleventh Circuit’s opinion in Bryant fails to afford thousands of inmates their statutory right to seek relief. These inmates continue to be harmed by the Sentencing Commission’s and the BOP’s failures. Such a result diverges from both the letter and spirit of the FSA.
No doubt, this statute, like any other statute enacted by Congress, must also be read in context.176 The context of § 3582(c) suggests that there is not an intent to limit judicial discretion in determining what constitutes an extraordinary and compelling circumstance. For example, when Congress enacted the SRA, it explicitly stated that one avenue for relief using a sentence reduction would be for sentences which were “unusually long.”177 At the same time, the BOP heeded neither Congress’s nor the Sentencing Commission’s guidance by consistently declining to bring any motions.178 Frustrated with the BOP’s performance, Congress amended § 3582(c)(1)(A) to increase the use of compassionate release by allowing defendants to go straight to the district courts.179 Unlike other parts of the FSA that expressly limit judges reviewing compassionate release motions, § 3582(c)(1)(A) is not so limited.180 Section 603(b) reshaped the dynamic of compassionate release by permitting the district court to consider a defendant’s motion, regardless of the BOP’s position. Congress knew of the BOP’s rare granting of compassionate release petitions.181 Thus, Congress explicitly intended the FSA to respond to decades of BOP failure to request compassionate release where it was warranted.182 Yet some courts believe the plain language of § 3582(c)(1)(A) does not mean what it says.183 Nothing in the text or legislative history supports that proposition—in fact, the legislative record reveals precisely the opposite.184
Faced with the undeniably broad text, courts have chosen to narrow the statute by assuming that Congress implied what it did not say.185 This understanding is flawed, would exacerbate the problems the FSA sought to correct, and would create arbitrary barriers not based on the individual’s circumstance, but on where they were sentenced.
To begin, this reading deviates from the statute’s overall design.186 When Congress amended § 3582(c)(1), it chose to insert the ability of inmates to bring motions directly to the courts.187 The title of the FSA section which amended § 3582(c)(1)(A), “Increasing the Use and Transparency of Compassionate Release,” also shows that Congress was determined to address the BOP’s failures.188 Further, a different provision enacting the SRA contains an express reference that rehabilitation, when considered alone, may not be considered an extraordinary and compelling circumstance under § 3582(c)(1)(A).189 If Congress desired to limit judicial discretion, both in determining whether courts can decide what constitutes extraordinary and compelling circumstances, as well as what is or is not off-limits, it could have used language similar to what it invoked in § 994(t). Or, it could have inserted the command to follow the Sentencing Commission’s policy statement provision without the “applicable” qualifier. That said, Congress did neither of those things, and courts “must give effect to Congress’ choice.”190 As a whole, the text thus supports judicial discretion.
Further, it can never be the case that the BOP will invoke the ground set forth in Section 1(D) of the Sentencing Commission’s commentary. That is because internal BOP guidance prohibits the director from bringing a motion for compassionate release that is not based on one of the three enumerated categories in the 2007 Sentencing Commission policy statement.191 But internal guidance can easily change. After Congress passed the FSA, the BOP released a program statement which outlines standards far more stringent than those stated in Section 1B1.13.192 In other words, the program statement that governs the BOP’s procedure for assessing requests for compassionate release from inmates limits the possible grounds to age, medical condition, and caregiver status.193 Thus, if an extraordinary and compelling reason outside of those three enumerated categories justifying compassionate release does exist, it must come from the policy statement by the Sentencing Commission, as the BOP’s program statement eliminates the “other” provision in its entirety. Congress amended § 3582(c)(1)(A) to increase the use of compassionate release. By permitting the BOP to both be the arbiter of what constitutes “other” extraordinary and compelling circumstances, and then permit the BOP to eliminate that ground for relief, courts allow the BOP to undermine the FSA.194
“Just as a painter need not start every new work from a clean canvas, Congress may add to what it has already created.”195 Congress enacted the FSA to be just that—a first step. So, Congress could pass a law to remedy the issue.196 We propose Congress adopt legislation that vests district courts with the discretion to determine whether a prisoner is experiencing extraordinary and compelling circumstances warranting compassionate release in all cases, both on prisoner-filed compassionate-release motions and BOP-filed compassionate-release motions.
This proposal is not as far-fetched as it may sound. Professor Blumstein explains that:
In today’s highly polarized political environment, one of the few issues on which one can see widespread agreement across the parties is the desire to reduce prison populations. This agreement results from the nation’s impressively high incarceration rate (typically described as “mass incarceration”), which is almost five times its formerly stable rate, several times higher than all the other developed countries, and is essentially the highest rate in the world. Such agreement also flies in the face of the impressively low crime rate currently prevailing in the United States.197
“Fortunately, bipartisanship is flourishing in many areas of the criminal justice reform agenda.”198 Recall a Republican Congress passed, and President Trump signed, the FSA. Indeed, “[g]roups as diverse as the American Civil Liberties Union, the Heritage Foundation, the Brennan Center for Justice, and the American Conservative Union Foundation all support federal criminal justice reform.”199 This trend in bipartisan criminal justice reform rings true at both the state and federal level.200
But Professor Herman raises an important point about the longevity of bipartisan criminal justice reform. To continue, the big question will be “whether public opinion will continue to move toward acceptance of data-driven solutions, or whether exaggerated fear of violent crime will stymy further reduction of the prison population.”201
So long as the bipartisan approach to criminal justice reform continues, an opportunity exists for Congress to pass a law building on the progress of the FSA and explain who gets to determine whether a prisoner has identified extraordinary and compelling circumstances warranting compassionate release. We believe the political will is there, and Congress should not hesitate to act to codify district courts’ authority to grant compassionate release where appropriate.
3. The United States Sentencing Commission Should Revise the Application Note to Reflect the First Step Act’s Creation of a Prisoner-Filed Compassionate-Release Motion
Of course, the Sentencing Commission could update the Application Note to reflect the FSA’s changes permitting prisoners to file their own motions for compassionate release. Easier said than done. From January 2019 until August 2022, the Commission did not have a quorum.202 After years of impasse, President Biden nominated, and the Senate confirmed, seven bipartisan members to the Commission.203 But the policy statement has not been revised since Congress amended § 3582(c)(1) to allow federal inmates, not simply the BOP, to move for compassionate release directly in federal courts. Even so, simply having a quorum matters little. Nothing forces the Sentencing Commission to produce an updated policy statement. It took the Sentencing Commission twenty-two years to produce the first policy statement—ignoring the mandate from Congress in the process.204 The Commission also follows a deliberative and multi-step process before it votes on changes, which can take months or even years to complete in its own right.205 Although the Commission now has a quorum, nothing precludes it from waiting another twenty-two years to produce another policy statement.206 This would render § 3582(c)(1)(A) largely a dead letter.207 To be clear, we do not suggest this is likely.
Nevertheless, courts have no ability to update the Commission’s 2007 policy statement by ignoring the pre-FSA language relating solely to BOP-filed motions.208 That reading also places the commentary in direct conflict with both the text of the amended § 3582(c)(1)(A) and the text of the policy statement on which the commentary expands. Neither § 3582(c)(1)(A) nor Section 1B1.13 command a finding of extraordinary and compelling reasons by the Sentencing Commission.
Perhaps the most ideal remedy to the Bryant problem would be for the Sentencing Commission to amend the Application Note. This may not be as idealistic as observers believed just months ago, given the new quorum. We suggest the first task the Sentencing Commission should undertake with a new quorum is remedying this blind spot that the court in Bryant misinterpreted. Even so, this process will not happen overnight, and litigation or legislation may move more quickly to re-vest judges with their discretion.
4. Another Inmate in the Eleventh Circuit Should Seek En Banc Review to Overturn Bryant
Finally, another prisoner could litigate his claim in the Eleventh Circuit and attempt to secure en banc review of the erroneous Bryant decision. The Eleventh Circuit, like other circuits, follows the “prior panel rule,” which “is simply that ‘[the Eleventh Circuit is] bound by the holdings of earlier panels unless and until they are clearly overruled en banc or by the Supreme Court.’”209 Federal Rule of Appellate Procedure 35 explains that en banc review is ordered where the “majority of the circuit judges who are in regular active service and who are not disqualified . . . order that an appeal . . . be heard or reheard by the court of appeals en banc.”210 Although generally disfavored, en banc review may be appropriate if “a petition . . . assert[s] that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”211
This hypothetical is the reality of Bryant. The Eleventh Circuit broke with every other court of appeals to consider prisoner-filed petitions. Although unlikely, an en banc Eleventh Circuit could embrace its sister circuits’ approach and overrule Bryant.
Conclusion
“You will not find God or grace in legal concepts, in formal notions of criminal justice. Certain values and ideals are beyond justice. These include mercy, forgiveness, redemption, dignity.”212 We trust judges to uphold these values and ideals. We trust judges to be merciful. Or we should. Indeed, federal judges “have life tenure to insulate rulings from public influence.”213 The Eleventh Circuit’s opinion in Bryant, however, weakens that trust and binds the hands of sentencing courts. “[B]y a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, ‘uncontradicted’ legislative history and uniform precedent,” the majority in Bryant wrought harm and despair on prisoners in the Eleventh Circuit.214 And the Supreme Court denied Bryant’s petition for a writ of certiorari to remedy the majority’s obvious error.215 So we join the unanimous commentary critiquing this erroneous decision.216
So, what now? We offer a few solutions. The Sentencing Commission can begin to undertake the pressing work of revising the Application Note. But the process is long and arduous. Congress could pass a law returning compassionate-release discretion to sentencing judges, either for only prisoner-filed petitions or both BOP-filed and prisoner-filed petitions for compassionate release. And an intrepid lawyer could go back to the Eleventh Circuit and attempt, through en banc review, to have Bryant overturned as wrongly decided.
This Article discusses only federal sentencing and federal compassionate release. But of course, “[s]tate courts handle many more criminal cases than the federal courts,” and “[s]tate sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system.”217 Regrettably, “[s]tate sentencing is under-examined in part because state systems are difficult to comprehensively analyze, either individually or collectively.”218 “Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.”219 This Article should be the beginning, not the end, of the discussion of compassionate release. Future scholarship should turn to the states, evaluating compassionate release at the state level and importing the discretion that we propose federal judges enjoy in compassionate release determinations to state judges.
“There is no way to sugar coat it—the COVID-19 pandemic has forever impacted society as we know it.”220 But the pandemic shone a light on compassionate release in a way other events had not. COVID-19 put front and center the issue of judicial discretion in determining when a prisoner has identified “extraordinary and compelling circumstances” that may warrant her compassionate release. Whether because of newly enacted legislation not made retroactive or because of a global pandemic, federal judges must have the discretion to determine whether a prisoner identifies circumstances appropriate for compassionate release.