The passage of the First Step Act of 2018 provoked a wave of scholarship analyzing the impact of the Act on compassionate release. However, little attention has been paid to the newfound potential for sentencing errors to fit within the compassionate release framework. This Note addresses a federal circuit split over the legality of sentencing errors as a ground for compassionate release. Drawing on statutory text, legislative history, and recently promulgated U.S. Sentencing Commission guidelines, this Note seeks to provide a robust defense for judicial discretion to consider sentencing errors as a basis for compassionate release. Sentencing errors represent a profound failure of the criminal legal system and expose the extremely limited opportunities to correct such an error through post-conviction litigation. Although the proposals contained within this Note have the potential to alleviate some suffering, this discrete statutory issue is narrow in scope and should not distract from the enormity of harm caused by the criminal legal system.
Introduction
Mr. Roy West is currently serving an illegal sentence of death by incarceration, also known as life without parole.1 After a mistrial, a second jury convicted Mr. West of conspiracy to use interstate commerce facilities in the commission of murder for hire in 2011.2 In 2022, Mr. West moved for a sentence reduction under the compassionate release statute based on an error in his original sentence.3 He argued that the jury instructions used during his trial only required the jury to find him guilty of conspiracy, not that death resulted from the conspiracy.4 Conspiracy alone carries a maximum sentence of ten years, not the life sentence that Mr. West is currently serving.5 In response to his compassionate release motion, the U.S. Court of Appeals for the Sixth Circuit worked under the presumption that Mr. West’s current sentence of death by incarceration is unlawful because the jury did not make the “death resulted” finding of fact required for the increased sentence.6 Despite acknowledging Mr. West’s illegal sentence, the Sixth Circuit rejected his argument that the sentencing error could be considered an extraordinary and compelling reason for a sentence reduction under the compassionate release statute and denied his claim.7 Lacking alternative avenues for relief, Mr. West remains illegally incarcerated to this day.8
This Note will focus on opportunities for sentence reductions in federal court, addressing a circuit split over whether sentencing errors9 can provide for early release under the compassionate release statute.10 The stakes of this issue are unmistakably high. The sentencing error in Mr. West’s case is the only reason that he remains incarcerated today, and yet he is prevented from accessing relief.11
This Note argues that sentencing errors may be considered extraordinary and compelling reasons for early release under the compassionate release statute. This analysis requires careful statutory interpretation. The text of the Sentencing Reform Act of 1984 as amended by the First Step Act of 2018, the legislative history of both acts, and the recently promulgated U.S. Sentencing Commission (“the Commission”) guidelines support a broad reading of the compassionate release statute, affirming judicial discretion to consider what may amount to an extraordinary and compelling reason for early release, including sentencing errors.12 The Sixth Circuit’s position, that judges are prohibited from considering sentencing errors as potential grounds for compassionate release, is inconsistent with the text and the legislative history of the compassionate release statute. Furthermore, federal habeas law does not preclude a broad interpretation of compassionate release, as the Sixth Circuit contends.13 Clarity on the role of compassionate release in addressing sentencing errors is required to provide justice where the courts have previously failed.14 In the case of sentencing errors, courts must choose fairness over finality.
Part I of this Note provides background on the compassionate release statute as amended by the First Step Act.15 Part II details the circuit split over whether a sentencing error may constitute an extraordinary and compelling reason for a sentence reduction under the compassionate release statute.16 Part III analyzes the proper interpretation of the compassionate release statute, drawing upon statutory language, legislative history, recently promulgated Commission guidelines, and federal case law.17 Part III also rebuts the argument that federal habeas law precludes sentencing errors from being considered an extraordinary and compelling reason for compassionate release.18 Part IV considers potential implications resulting from this Note’s proposed reading of the compassionate release statute.19 Finally, this Note concludes that federal courts should adopt the approach taken by the First Circuit that sentencing errors may constitute an extraordinary and compelling reason for release under the compassionate release statute.20
I. Background
Congress passed the Sentencing Reform Act as part of the Comprehensive Crime Control Act of 1984.21 One of the intended purposes of the Sentencing Reform Act was to increase uniformity in federal sentencing.22 Prior to the Act’s passage, Congress identified judicial sentencing disparities23 and indeterminate sentencing24 as areas of legislative concern.25 In order to address these issues, the Sentencing Reform Act abolished federal parole and established the Commission, which had the authority to enact federal sentencing guidelines.26 These provisions facilitated a massive expansion of the prison industrial complex27 and inflicted immense violence on poor, Black, and Hispanic communities.28 In addition to these consequential changes, the Sentencing Reform Act also included the compassionate release statute.29 Under the compassionate release statute, federal courts may reduce a sentence based on “extraordinary and compelling reasons” as long as the reduction is consistent with the Commission’s guidelines.30 In the midst of sweeping changes seeking to standardize federal sentencing, Congress allowed judges to retain discretion over sentence modifications through compassionate release.31
In 2018, Congress passed the First Step Act which, among other provisions, allows incarcerated people to file motions under the compassionate release statute for reduced sentences themselves.32 This amendment drastically expanded federally incarcerated people’s ability to seek compassionate release.33 Prior to 2018, incarcerated individuals had to rely on the Director of the Bureau of Prisons (“BOP”) to file these motions.34 This change has led to an increase in the number of compassionate release motions filed in federal district court, creating more opportunities for both federal district court judges to evaluate motions for compassionate release and for individuals to be released from prison.35
The avenues for federally incarcerated people seeking to reduce their sentences are limited.36 After the Sentencing Reform Act eliminated federal parole, the primary mechanisms available to individuals pursuing sentence reductions are direct appeals and federal habeas petitions.37 Federal habeas law imposes a notoriously high bar for incarcerated people attempting to vacate their sentence.38 Once the appeals process is complete and habeas petitions are adjudicated, compassionate release may provide the only other opportunity for relief.
II. Circuit Split
In the wake of the First Step Act’s passage, there was a flood of litigation from federally incarcerated people seeking to reduce their sentences.39 Much of this early litigation centered around conditions of incarceration during the COVID-19 pandemic.40 As the threat of the pandemic receded, other novel legal issues emerged as a result of incarcerated people having the ability to petition for compassionate release on their own behalf.41 Some courts are using their newfound discretion to evaluate these claims to expand what may be considered an extraordinary and compelling reason,42 but federal courts differ over how this phrase should be interpreted within the guidelines set by the Commission.43 Specifically, courts remain split over whether judges may consider a sentencing error to be an extraordinary and compelling reason warranting compassionate release.44
A. The Sixth Circuit’s Opinion in United States v. West Held That a Sentencing Error Cannot Be Considered Grounds for Compassionate Release
In June 2010, a grand jury charged Mr. West with conspiracy to use interstate commerce facilities in the commission of murder for hire.45 The jury failed to reach a verdict, resulting in a mistrial.46 A second jury convicted Mr. West, and the court imposed a sentence of death by incarceration.47 The Sixth Circuit affirmed the conviction on direct appeal.48 Mr. West then filed a motion for a new trial, followed by motions to vacate his sentence under federal habeas law.49 All of these motions were denied.50 Nearly eleven years after the imposition of his sentence, in June 2022, Mr. West raised a sentencing error that had previously been overlooked.51 Mr. West argued that the district court had erred in failing to instruct the jury to find that the death at issue in his case resulted from Mr. West’s conspiracy.52 This finding was necessary for the court to impose death by incarceration, rather than a ten-year sentence for conspiracy to use interstate facilities in the commission of a murder for hire.53 Without the “death resulted” enhancement, Mr. West should only have been sentenced to a maximum of ten years.54 Without this error, Mr. West would not currently be sentenced to death by incarceration.55 Mr. West argued that the error in his original sentence constituted an extraordinary and compelling reason for a sentence reduction under the compassionate release statute.56
Although the district court was persuaded by Mr. West’s arguments and granted his motion for a sentence reduction, the Sixth Circuit reversed, joining the D.C. and Fifth Circuits in holding that a sentencing error does not provide an extraordinary and compelling reason for early release under the compassionate release statute.57 The Sixth Circuit reasoned that its previous case law does not allow for compassionate release to provide an alternative to the writ of habeas corpus.58 The court specified that the federal habeas statute is the statutory scheme for post-conviction relief and the only avenue for challenging an incarcerated person’s sentence, thereby excluding sentencing errors from review by the compassionate release statute.59 As Mr. West has already exhausted his habeas claims, he is prevented from seeking a legal remedy for the newly discovered sentencing error and remains illegally incarcerated until he dies.60
There is no question as to whether there was an error in Mr. West’s sentencing.61 Yet, he no longer has any other legal avenues to end his time in prison—a sentence which has gone on nearly twice as long as it legally should have.62 Despite this, the Sixth Circuit remains committed to the value of finality and the notion that federal habeas law overrides the compassionate release statute.63 The court underscores that finality is essential to our criminal legal system’s functioning and that the bar on successive federal habeas motions supports this purpose.64 The reality that the sentencing error had not yet been discovered at the time of Mr. West’s habeas petition is a fact that is unmoving for the Sixth Circuit.65
The Sixth Circuit distinguished a recent First Circuit case on the same issue, reasoning that its sister circuit could reach a different conclusion—allowing sentencing errors to provide an extraordinary and compelling reason for release—because the First Circuit’s compassionate release jurisprudence is broader than its own.66
B. The First Circuit’s Opinion in United States v. Trenkler Affirmed Judicial Discretion to Consider Sentencing Errors as Grounds for Compassionate Release
In the First Circuit, sentencing errors can constitute a basis for compassionate release, as indicated in two recent cases, United States v. Ruvalcaba and United States v. Trenkler.67 The facts of Ruvalcaba are similar to Mr. West’s case. Mr. José Ruvalcaba was sentenced to death by incarceration and moved for compassionate release after the First Step Act amendment allowed incarcerated people to file motions on their own behalf.68 In Mr. Ruvalcaba’s case, the First Circuit rejected the argument that federal habeas law limits a district court’s discretion in determining what may constitute an extraordinary and compelling reason.69 The court held that in the absence of an applicable policy statement from the Commission, district courts may consider “any complex of circumstances” that a defendant raises as part of an extraordinary and compelling reason to grant relief.70 At the time the court decided Ruvalcaba, the Commission lacked a quorum and had not released updated guidelines since the First Step Act amended the compassionate release statute.71
Ruvalcaba laid the foundation for Mr. Alfred Trenkler’s favorable ruling in front of the First Circuit. In 1994, a judge sentenced Mr. Trenkler to death by incarceration without input from the jury despite a jury recommendation being required by 18 U.S.C. § 844(d) and (i)—the statute under which he was convicted.72 This error went uncovered until more than a decade after Mr. Trenkler’s conviction and well after his direct appeals and exhaustion of the federal habeas process.73 In 2007, Mr. Trenkler filed a writ of coram nobis to address the error, which the district court granted and amended his sentence.74 However, the First Circuit reversed the district court’s order granting the writ of coram nobis and vacated the amended sentence, reinstating Mr. Trenkler’s sentence of death by incarceration.75 The First Circuit held that Mr. Trenkler’s petition amounted to an untimely motion to vacate his sentence under federal habeas law.76 Not until Congress passed the First Step Act in 2018 did Mr. Trenkler have another possible avenue for relief from his erroneously imposed sentence of death by incarceration.77 Upon reviewing his motion for compassionate release, the district court found Mr. Trenkler’s sentencing error to be extraordinary and compelling.78 Specifically, the court found that the original trial court judge sentenced him to death by incarceration with a mere preponderance of the evidence when the controlling statute required that only a jury impose death by incarceration.79 On appeal, the First Circuit remanded the case in light of their previous decision in Ruvalcaba, that “any complex set of circumstances” may be considered an extraordinary and compelling reason for compassionate release,80 leaving open the possibility that sentencing errors could provide for early release under the compassionate release statute.81
On remand from the First Circuit, the Trenkler district court again held that the sentencing error constituted an extraordinary and compelling reason for compassionate release.82 The district court engaged in a holistic review of Mr. Trenkler’s circumstances but gave Mr. Trenkler’s “unlawful original [death by incarceration]” the most weight in its analysis, granting a long overdue reduction in his sentence.83
The U.S. District Court for the District of Massachusetts sought to address the shocking miscarriage of justice in Mr. Trenkler’s case,84 but not all federal courts choose to do the same when faced with compassionate release claims based on sentencing errors. When federal circuit courts have ruled that sentencing errors do not constitute an extraordinary and compelling reason for compassionate release, they have done so primarily on two key grounds: (1) that this reading of compassionate release would impermissibly circumvent federal habeas corpus law;85 and (2) that intervening non-retroactive sentencing statutes are neither extraordinary nor compelling.86 The recently promulgated Commission Guidelines address the latter argument, therefore this Note will focus on the former.87 This Note addresses sentencing errors that were legal errors at the time of sentencing.
III. Analysis
Federal courts should adopt the First Circuit’s approach to sentencing errors and compassionate release, holding that unlawful sentences may constitute an extraordinary and compelling reason for a sentence reduction under the compassionate release statute.88 The compassionate release statute as amended by the First Step Act grants district courts broad discretion to determine what may constitute an extraordinary and compelling reason, including sentencing errors.89 Even though the circuit split occurred before the new Commission guidelines were released, the First Circuit’s position is affirmed by the updated guidelines.90 The First Circuit’s approach is supported by the text of the Sentencing Reform Act of 1984 as amended by the First Step Act of 2018, the legislative history of the acts, and the recently promulgated Commission guidelines.91 A blanket ban on judges considering sentencing errors as grounds for compassionate release is inconsistent with the text and the history of the compassionate release statute.92 Courts must reject the Sixth Circuit’s narrow view of compassionate release, which imposes an atextual limit on a court’s discretion to address unlawful sentences.93
A. The Text of the Compassionate Release Statute Supports Consideration of Sentencing Errors
The text of the compassionate release statute indicates that judges are granted broad discretion to determine what may be considered an extraordinary and compelling reason for compassionate release.94 A federal court may reduce a term of imprisonment if it finds that an incarcerated person has shown that “extraordinary and compelling reasons warrant such a reduction.”95 The key aspects of this statute that require analysis are (1) the meaning of extraordinary and compelling reasons, and (2) district court judges’ discretion to consider factors that may be extraordinary and compelling.96
The compassionate release statute does not define “extraordinary and compelling reasons.”97 Rather, the terms are left without a statutory definition.98 This ambiguity grants courts discretion to make their own determination as to what may constitute an extraordinary and compelling reason in an individual’s case.99 The discovery of a sentencing error, which renders a federally incarcerated person’s imprisonment unlawful, years after exhausting all potential post-conviction remedies, may reasonably be considered extraordinary and compelling.100
The only explicit textual limitation that Congress has placed on what may constitute an extraordinary and compelling reason is that an individual’s rehabilitation may not be considered.101 The singularity of this limitation is apparent from both the text of the statute and the legislative history.102 Outside of this limitation, the text of the compassionate release statute grants courts wide discretion to determine what circumstances may warrant compassionate release.103 From the text of the statute, it is clear that judges are not precluded from considering sentencing errors as grounds for compassionate release.
The above analysis is not intended to suggest that all sentencing errors, no matter how minor, are extraordinary and compelling. Rather, judges may consider whether a sentencing error constitutes an extraordinary and compelling reason for compassionate release. The judge will make the determination, and a judge may find that a minor sentencing error is neither extraordinary nor compelling. This Note simply argues that judges are not foreclosed from considering whether a sentencing error is extraordinary and compelling. In addition, a judge may find that a lack of other available post-conviction remedies impacts the compelling nature of the legal error at sentencing.
Applying the First Circuit’s standard, if the court is considering any complex set of circumstances as part of an extraordinary and compelling reason to grant relief, the fact that there are no other remaining opportunities to access relief may be weighed in the extraordinary and compelling analysis.104 Compassionate release claims adjudicated on other grounds have considered the absence of any additional avenues to access relief to be extraordinary and compelling.105 The reality that an individual has no remaining opportunities to contest their incarceration may render a claim even more demanding of attention under the compassionate release framework.
B. Legislative History of the Compassionate Release Statute Affirms Judges’ Broad Discretion in Granting Compassionate Release
Although the Sentencing Reform Act of 1984 sought to bring uniformity to federal sentencing, the legislative history of the compassionate release statute demonstrates an intent for judges to retain broad discretion within the specific area of compassionate release.106 Due to the ambiguity in the statutory text, legislative intent and legislative history are relevant tools of statutory interpretation.107
Judge Robert A. Katzmann argues that judges should construe statutes to execute legislative purposes.108 To carry out Judge Katzmann’s proposal, judges should look to legislative history to help identify meaning when a statute is silent or unclear about an issue.109 By looking to the text, context, impetus for legislation, and legislative materials, one can discern congressional intent and what the legislature is broadly trying to achieve with the statute.
At the time of the Sentencing Reform Act’s passage, there was wide understanding that the undefined phrase “extraordinary and compelling reasons” granted broad discretion to district courts to determine what may be considered extraordinary and compelling under the statute.110 In the hearings leading up to the passage of the Sentencing Reform Act of 1984, some advocated for eliminating the phrase altogether.111 Testimony from Cecil McCall, Chairman of the United States Parole Commission, warned against “the possibility of wide-spread disparity among the 550 district judges who will exercise [compassionate release] power.”112 Although this testimony presents a warning against the ambiguous phrase, it acknowledges the significant discretion granted to district court judges by including a broad and undefined phrase in the compassionate release statute, ultimately suggesting that sentencing errors may be considered.
Judge Gerald B. Tjoflat of the Fifth Circuit also testified that the catchall phrase, “extraordinary and compelling reasons,” would grant courts discretion that would be impermissibly broad.113 He warned that this discretion would result in different interpretations and inconsistent applications of the compassionate release statute.114 Judge Tjoflat argued in favor of removing extraordinary and compelling reasons from the statute in order to limit grants of compassionate release to situations involving terminal illness.115
Congress ultimately did not choose to strike the phrase despite recognizing that the term would be subject to different interpretations by various judges.116 Congress’s choice suggests legislative intent for judges to exercise their discretion in determining what may be considered extraordinary and compelling and that circumstances beyond terminal illness should be considered.117
While sentencing errors were not specifically mentioned during hearing testimony, Chairman McCall cited changed circumstances as a reason that compassionate release may be necessary.118 Deputy Assistant Attorney General Ronald Gainer also noted that a “serious change in circumstances” would amount to an extraordinary and compelling reason for release.119 These examples indicate that judges retain considerable discretion to evaluate an incarcerated person’s individual circumstances when adjudicating a compassionate release motion. Compassionate release is intended to be exercised where “circumstances are so changed . . . that it would be inequitable” to maintain the original sentence.120 It is therefore reasonable for a judge to determine that uncovering a sentencing error constitutes changed circumstances that render the original sentence inequitable to maintain.
Prior to the Sentencing Reform Act’s passage, Congress also held hearings over abolishing the federal parole board and instituting compassionate release as an alternative framework for incarcerated people to seek early release.121 Ultimately, the Sentencing Reform Act of 1984 eliminated the federal parole board, with compassionate release as its limited replacement.122 By abolishing the federal parole system and granting discretion to judges to respond to an incarcerated person’s changed circumstances through compassionate release, Congress sought to retain a modicum of flexibility in a system of rigid, determinate sentencing.123 Congress believed that there may be some cases in which a sentence reduction would be justified due to changed circumstances and that the courts would be the appropriate body to make this determination.124
Although parole was not designed to remedy sentencing issues, parole historically could serve as a safety valve on the back-end of the sentencing system.125 Until federal parole was infamously abolished in 1984, the practice retained significant control over release dates and served as an error-mitigating function.126 The parole system’s discretion over sentence durations existed in part because incarcerated individuals were previously required to serve no more than one-third of their sentences.127
In a system without parole, sentencing errors must be addressed through appeals or other post-conviction mechanisms like compassionate release.128 The legislative history of the Comprehensive Crime Control Act indicates that Congress intended for the compassionate release statute to serve as a “‘safety valve[]’ for modification of sentences,” allowing for sentence reductions when federal parole would have previously granted a sentence modification.129 Given this history, compassionate release can be understood as a measure that judges may use in place of federal parole in exceptional circumstances. The historically flexible use of federal parole in modifying sentences suggests that Congress expected judges to address sentencing errors through compassionate release once it abolished federal parole.
C. The Text and Legislative History of the First Step Act Endorses Judges’ Discretion to Consider Sentencing Errors
The First Step Act increased judicial discretion to assess compassionate release petitions.130 By allowing federally incarcerated people to file motions on their own behalf, the amended statute encourages district courts to independently consider whether the facts before them constitute an extraordinary and compelling reason for compassionate release.131 Beyond this procedural change, the First Step Act’s language indicates that judges decide whether extraordinary and compelling circumstances are granted.132
In addition to the statutory text, the legislative history of the First Step Act strongly suggests congressional intent to grant judges broad discretion to determine what may be considered an extraordinary and compelling reason within the meaning of the statute. With this discretion, judges may consider a sentencing error as an extraordinary and compelling reason for compassionate release.
The overall intent of the First Step Act was to take steps toward reducing mass incarceration.133 The First Step Act’s amendment to the compassionate release statute represents an effort to increase the use of this safety-valve mechanism on the back end of sentencing. Deferring to the courts’ broad discretion to interpret what may be considered extraordinary and compelling, including sentencing errors, effectuates this congressional purpose. Allowing a judge to exercise their discretion to grant a sentence reduction for an individual who is unlawfully incarcerated furthers the goal of reducing mass incarceration.
The First Step Act indicates congressional intent to increase and expand the use of compassionate release to reduce sentences.134 A May 2018 report from the House of Representatives on the First Step Act, expressed clear support for expanding the use of compassionate release under the proposed amendments to the compassionate release statute.135 In debates on the Senate floor, mere weeks before the passage of the bill, Senator Ben Cardin extolled the bill’s positive reforms, including the expansion of compassionate release under the First Step Act.136 Additionally, in the text of the bill, as printed in the record during proceedings and debates of the Second Session of the 115th Congress, the section modifying the compassionate release statute to allow defendants to make motions is titled “Increasing the Use and Transparency of Compassionate Release.”137 This subtitle speaks to the congressional intent behind the Act, which is to increase the use of compassionate release by removing the Director of BOP as the gatekeeper and allowing judges to exercise their discretion to evaluate incarcerated peoples’ claims.138
With the passage of the First Step Act came an opportunity for compassionate release petitions to be filed based on a broader set of grounds than had previously been allowed by BOP. There was recognition within the federal government that prior to the First Step Act, because the Director of BOP initiated the process for submitting a compassionate release petition, BOP effectively set the criteria for what individual circumstances would be deemed extraordinary and compelling.139 Congress understood that the Director of BOP would only consider certain categories in deciding whether to file a motion for compassionate release.140 BOP notoriously only made motions for compassionate release in cases of terminally ill individuals, refusing to make use of the full range of potential grounds for compassionate release.141 BOP’s practice blatantly ignored Congress’s explicit rejection of Judge Tjoflat’s original suggestion that compassionate release should be restricted to cases of terminally ill individuals.142 BOP’s refusal to make use of the full range of potential grounds for compassionate release restricted the reach of the statute, indicating disregard for congressional intent.
Congress responded to BOP’s obstinance by removing its power to initiate compassionate release petitions from BOP with the First Step Act.143 This legislative change shifted the authority to evaluate an incarcerated person’s motion for compassionate release from BOP to the courts. While this change may appear to be merely procedural, Congress intended the courts to evaluate “the full array of grounds reasonably encompassed by the ‘extraordinary and compelling’ standard.”144 By removing BOP’s gatekeeping function over compassionate release, Congress intended to expand the previously narrow grounds upon which compassionate release would be granted.145 The amendment allows for compassionate release to fulfill its role as a mechanism for correcting unfair sentences, not just to address cases of terminal illness. Congress acknowledged that giving incarcerated people the opportunity to file petitions themselves would create new grounds for compassionate release.146 The First Step Act allows courts to consider whether sentencing errors constitute an extraordinary and compelling reason.
Judge Beverly Martin’s dissent in United States v. Bryant further illuminates the significance of Congress removing BOP as the compassionate release gatekeeper.147 She reasons that Congress was concerned with BOP’s judgement regarding the circumstances that may warrant compassionate release.148 Congressional concern with BOP’s failure to evaluate compassionate release claims outside of terminally ill individuals led to the compassionate release provision in the First Step Act.149
The First Step Act amendment to the compassionate release statute demonstrates congressional interest in understanding which grounds for compassionate release are utilized. The compassionate release statute now requires an annual report providing information on “the number of requests initiated by or on behalf of [incarcerated people], categorized by the criteria relied on as the grounds for a reduction in sentence.”150 By adding this requirement, Congress indicated an interest in tracking changes in the reasons cited for compassionate release, now that incarcerated people can file motions on their own behalf. This change is an implicit acknowledgement that there will be differences in the grounds used to file petitions when removing BOP as the gatekeeper and allowing incarcerated people to file compassionate release motions themselves.
D. New Regulations from the U.S. Sentencing Commission Accepts Sentencing Errors as Reason for Compassionate Release
In early 2023, the Commission promulgated new guidelines defining what may be considered an extraordinary and compelling reason for compassionate release.151 The Commission has statutory authority to determine what may constitute an extraordinary and compelling reason for purposes of the compassionate release statute.152 The compassionate release statute requires that a grant of compassionate release by a district court judge be consistent with the Commission’s guidelines.153
In passing the First Step Act of 2018, Congress rendered the then-current Commission guidelines describing extraordinary and compelling reasons obsolete, because the guidelines’s statement applied solely to motions filed by BOP.154 The Commission was then unable to update its guidelines because it lacked a voting quorum.155 In 2022, the Senate confirmed President Biden’s Commission nominees, and the Commission was able to vote on guidelines for the amended compassionate release statute.156
In April 2023, the Commission promulgated amendments to the federal sentencing guidelines.157 Since 2007, the guidelines have listed specific reasons that may be considered extraordinary and compelling, followed by a broad, catchall term at the end for “other reasons . . . [that] are similar in gravity” to the enumerated reasons.158 The specific reasons deemed appropriate for consideration under compassionate release include an individual’s medical condition, age, and family circumstances.159 The recent guidelines, regarding what may constitute an extraordinary and compelling reason, added a new category to the enumerated list for non-retroactive changes in law in cases of “unusually long sentences” and retained the catchall “other reasons” provision.160 The amended guidelines expand the list of specific extraordinary and compelling reasons while retaining the “other reasons” basis for sentence reductions.161
With these amended guidelines, the Commission considered and rejected a “requirement that ‘other reasons’ be similar in nature . . . to the specified reasons.”162 Instead, the Commission decided that any “other reasons” must only be “similar in gravity.”163 The Commission could have narrowed the scope of what may qualify as an extraordinary and compelling reason, but it did the opposite by expanding the list of enumerated reasons and providing that “any other circumstances or combination of circumstances that, considered by themselves or together” can be considered.164
The canon against surplusage favors an expansive reading of the broad catchall phrase “other reasons.” The rule against surplusage stands for the proposition that every provision is to be given effect.165 If the catchall term did not grant district judges discretion to determine what may be considered an extraordinary and compelling reason, then the term would be superfluous. If the Commission did not intend to give judges discretion in making compassionate release determinations, then the inclusion of “other reasons” at the end of a list of enumerated reasons would be wholly unnecessary.
The circuit split at the center of this Note occurred before the Commission enacted the new guidelines. However, the new guidelines support the First Circuit’s interpretation that district court judges have broad authority to determine what may be considered an extraordinary and compelling reason for a sentence reduction under the compassionate release statute, including sentencing errors.166
The Commission acknowledged in its policy statement that compassionate release litigation has expanded since the passage of the First Step Act.167 The statement notes that the Commission considered the new types of cases being filed and maintains that judges are “in a unique position to determine whether circumstances warrant a reduction,” affirming broad judicial discretion to determine what constitutes an extraordinary and compelling reason.168 The statement underscores the deference that the Commission gives to district courts in determining what may constitute an extraordinary and compelling reason under the compassionate release statute.
While sentencing errors remain a small percentage of the reasons cited for granting compassionate release, the number of motions filed citing sentencing errors as a reason for relief has continued to increase since the passage of the First Step Act in 2018.169 Thus, the Commission was likely aware of the use of sentencing errors as grounds for granting compassionate release when it released the new guidelines.170 Yet, in the new guidelines, the Commission repeatedly affirmed district court judges’ discretion to grant reductions where appropriate, indicating an acceptance of judicial discretion to grant compassionate release based on sentencing errors.171
E. Federal Habeas Law Does Not Preclude a Broad Reading of Compassionate Release
A common argument employed against sentencing errors being considered extraordinary and compelling reasons for compassionate release is that this framework would allow district court judges to circumvent federal habeas law.172 Codified in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas law provides a procedure for federal courts to review the legality of an individual’s incarceration.173
The Sixth Circuit relied on a flawed analysis of federal habeas law to keep Mr. Roy West incarcerated. The court remains committed to the notion that federal habeas law supplants the compassionate release statute, at the expense of providing justice.174 The Sixth Circuit maintains this commitment, despite the fact that Congress never explicitly stated that one statute overrides the other175 and that at the time Mr. West brought his habeas claims, the error in his sentencing had not yet been discovered.176 Federal courts should adopt the First Circuit’s approach to sentencing errors and compassionate release, prioritizing fairness and justice.
Contrary to the Sixth Circuit’s reasoning in West, federal habeas law does not bar sentencing errors from being evaluated as an extraordinary and compelling reason under the compassionate release statute.177 Allowing sentencing errors to be considered extraordinary and compelling reasons under the compassionate release statute does not abrogate AEDPA’s limitation on successive habeas petitions; these statutes are distinct and can coexist.178
1. Federal Habeas Law and the Compassionate Release Statute are Distinct Statutory Schemes with Different Purposes and Mechanisms for Relief
There is no direct conflict between federal habeas law and the compassionate release statute.179 Federal habeas law allows for a sentence to be automatically vacated in cases of an illegal or invalid conviction.180 Compassionate release allows for the court to exercise its discretion based on an individualized review of an incarcerated person’s circumstances.181 Federal habeas law allows for a court to vacate a sentence or conviction,182 whereas the compassionate release statute allows a district court to reduce a sentence.183 These statutory schemes are distinct in purpose and scope.184
An incarcerated person must seek relief through habeas corpus when seeking a judicial determination that “impl[ies] the invalidity of [their] conviction or sentence.”185 However, the fact that a sentencing error occurred does not necessitate a finding that the conviction was invalid.186 Some advocates argue that a court deciding that a sentencing error, in addition to other factors, is an extraordinary and compelling reason for relief does not require a conclusion that the conviction is invalid.187 Therefore, there is no requirement that federal habeas must be the vehicle for such a claim.188 Even when a court finds extraordinary and compelling circumstances based solely on a sentencing error without other factors, this does not necessarily indicate that the incarcerated person may have their sentence vacated.189 Thus, habeas channeling is not triggered.190 A sentence reduction is distinct from a finding that a sentence must be vacated, and therefore compassionate release and federal habeas law are distinct legal frameworks with unique mechanisms for relief.
2. There Is No Congressional Intent for One Statutory Scheme to Supplant the Other
There is no congressional intent for federal habeas law to supersede compassionate release or vice versa.191 Drawing on Judge Katzmann’s arguments in favor of using legislative history as a tool in statutory interpretation,192 judges should look to legislative history to help identify meaning when a statute is silent or unclear about an issue.193 One of the senate reports on the compassionate release statute acknowledges that for the sake of expediency of passing the Sentencing Reform Act, the committee would deal with more controversial issues, including federal habeas law, in separate legislation.194 This brief mention in the report is the only instance in which habeas law is acknowledged in the compassionate release legislative materials, demonstrating that these are separate statutory schemes and that one is not meant to displace the other. Similarly, the legislative history of AEDPA does not indicate any attempt on the part of Congress to override the compassionate release statute.195 The Supreme Court recently warned against “[d]rawing meaning from silence.”196 Congress has not provided a clear indication that one statutory scheme should be prioritized over the other.197 Federal courts should not interpret congressional silence on this matter to signify that federal habeas law overrides compassionate release. Rather, both statutes must be given effect.
The related-statutes canon supports a reading of the compassionate release statute and federal habeas law that gives effect to both statutes. The canon requires harmonious interpretation of statutes.198 If it is possible for two statutes to be read together and not contrasting, then they should be understood in this manner.199 Without clear congressional intent otherwise, judges must give effect to both statutory schemes.200
Congress has spoken through the passage of the First Step Act, imposing a statutory duty upon federal district court judges to review an individual’s case for extraordinary and compelling reasons for compassionate release.201 The imposition of this duty suggests that Congress does not intend for federal habeas law to prevent judges from evaluating incarcerated individuals’ compassionate release claims.
3. Practical Considerations Favor the First Circuit’s Analysis
A person who is incarcerated may not be able to include arguments based on sentencing errors in their habeas petition, because they might not yet be aware of the existence of a sentencing error.202 There is an enormous imbalance of power and information for incarcerated individuals seeking post-conviction relief, and sentencing errors may not be uncovered until after habeas options have been exhausted. Particularly when habeas is no longer available as an avenue for post-conviction relief, compassionate release must be a possible remedy to address unlawful sentences.
Abstract judicial pleas for finality prove to be weak arguments in the face of an individual unlawfully sentenced to death by incarceration. Resentencing due to a sentencing error is not a particularly lengthy process, which invites questions as to the true persuasiveness of the Sixth Circuit’s finality concerns.203
IV. Implications
In a country as over-incarcerated as the United States, judges should embrace opportunities to correct unlawful sentences and aid individuals who are incarcerated illegally.204 It is hard to imagine circumstances more fitting for compassionate release than the discovery that one’s sentence is unlawful and there are no other remaining mechanisms to correct it.
Judges do not make decisions in a vacuum. The BOP is rife with abuse and lacks critical oversight.205 By subjecting individuals to egregious conditions of incarceration and acknowledging that there are precious few opportunities for sentencing errors to be addressed, courts such as the Sixth Circuit are abdicating their judicial duty to do justice when they deny compassionate release motions based on fealty to finality.
If courts adopt the First Circuit’s analysis, they have the potential to impact many lives. The total number of compassionate release motions sought based on sentencing error grounds are unknown. However, from the data available on the compassionate release motions that are granted, it is clear that sentencing errors are increasingly being raised as a ground for compassionate release.206 If federal circuit courts adopted the First Circuit’s position, there would be potential for many more individuals who are serving illegal sentences to receive sentence reductions.
Through the First Step Act amendment to the compassionate release statute, Congress opened an avenue for judges to correct unfair sentences.207 Instead of seizing the opportunity to exercise their discretion in evaluating an individual’s circumstances and correct unlawful sentences, judges in the Sixth, Tenth, and D.C. Circuits prioritize legal finality over human dignity and freedom. Their legal-formalist approach maintains the status quo and perpetuates harm, threatening the legitimacy of the judiciary.208 Courts should take advantage of the opportunity provided by the First Step Act to do justice where the criminal legal system has previously failed.
Conclusion
Federal courts should adopt the approach taken by the First Circuit that sentencing errors may constitute an extraordinary and compelling reason for release under the compassionate release statute. Courts should address sentencing errors brought to them through compassionate release motions and must not be foreclosed from considering legal errors at sentencing when making compassionate release determinations. The compassionate release statute as amended by the First Step Act grants federal courts wide latitude to determine what may be considered an extraordinary and compelling reason for release. There is nothing in the text of the compassionate release statute that excludes a sentencing error from being considered an extraordinary and compelling reason. Looking to congressional intent and purpose as methods of statutory interpretation reveals that Congress sought to maximize opportunities for incarcerated individuals to bring meritorious compassionate release claims. Federal courts may decline to provide relief based on sentencing error claims, but this decision is discretionary and must not be based on the premise that these claims are not cognizable under the compassionate release statute.
The gravity of this circuit split is undeniable when courts are presented with death by incarceration due to legal error. Judges must not sacrifice justice for finality when individuals are incarcerated illegally and there is a potential mechanism available to grant relief.209 The compassionate release statute should be used to address mass incarceration in situations such as Mr. West’s, and Mr. West should not be sentenced to death by incarceration today.210