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March 29, 2012

"Putting The Compassion Into 'Compassionate Release' With A Little Help From Setser"

The title of this post is the title of this great new post by Federal Public Defender Steve Sady over at the Ninth Circuit Blog, which discusses one (of many) interested aspects of the Supreme Court's sentencing ruling in Setser yesterday (basics here). The post demands a full read, but here are key excerpts:

Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue.  Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t).  The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted.  Great theory; horrible reality.

The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.”  In about 24% of the cases where a motion is filed, the prisoner dies before the sentencing judge has a chance to rule.  Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report....

[T]he Supreme Court just gave our § 3582(c) litigation a big boost in Setser.  First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).”  Exactly.  The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority.  But there’s more.  During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c).  Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))?  Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.

I likewise found notable and valuable the SCOTUS comments about § 3582(c)(1)(A) in Setser v. US, No. 10-7387 (S. Ct. March 28, 2012) (available here).  In addition to the important comments stressed in Steve Sady's post linked above, I also thought it important that at the very end of the Setser opinion the Court indicated that an imprisoned defendant who fails to get requested relief from the BOP adminstrative review process "may seek a writ of habeas corpus.  See 28 U.S.C. §2241."  Because I am not often involved in BOP-related issues, I am unsure if it is well known and/or common for imprisoned federal defendants to seek habeas review via 28 U.S.C. §2241 of BOP decisions that adversely impact them.  If not, the Setser ruling might, in this additional way, prove to be a very positive development for those already serving legnthy federal prison terms.

Prior related posts:

March 29, 2012 at 11:19 AM | Permalink

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Comments

I regularly work on BOP-related issues. I don't have a number, but anecdotally, I've seen plenty of federal inmate 2241s. Most that I've seen go pro se or with a jailhouse lawyer, because trained counsel is too expensive, and many petitions die on procedural grounds (including failure to navigate that damnable Administrative Remedy Program). But, I have seen some good habeas reasoning on occasion.

Posted by: Jay Hurst | Mar 29, 2012 7:30:59 PM

First off, there are THOUSANDS of 2241s filed by federal inmates every year. Secondly, with regard to Mr. Sady's newest plan of attck, I say good luck finding a court (outside, of course, of Oregon, where he coincidentally is based) who will find that Scalia's offhand, uninformed and meaningless throwaway comment regarding 3582 creates any obligation on the part of BOP to file a sentence reduction motion.

Posted by: anon | Mar 30, 2012 6:19:15 PM

Hi,

Thank you four your nice writing on "Putting The Compassion Into 'Compassionate Release' With A Little Help From Setser" .

Thanks.

Posted by: sams | Mar 31, 2012 3:12:54 AM

I have read Steve Sady's blog.Very well written.I must say Putting The Compassion Into Compassionate Release is very informative.

Posted by: Joey Gilbert law | Jun 21, 2012 9:08:49 AM

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