Good day for thinking hard about sentencing second looks and second chances

I am greatly enjoying day two of the great "Rewriting the Sentence" conference at Columbia Law School (previously noted here and here and here and being live streamed here).  This afternoon, I have the honor of moderating a panel titled "Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves," and then will get to attend another later panel on "The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency."   I am so excited this conference has two panels addressing, in varied ways, issues surrounding the correction or adjustment of problematic sentences.  As regular readers know, I have been thinking and writing about these issues a lot in recent years, making the case that they are particularly critical issues in an era of mass incarceration.  So I am so very glad this afternoon will be filled with robust discussions of sentencing second looks and second chances.

Excitingly, on the same day I am talking about these issues, Shon Hopwood has just published some important new writings on these topics.  Specifically, over at Prison Professors, Shon has this new important post titled "A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act."  This post, which should be read in full and includes important links, overviews a set of new writings by Shon on second looks and second chances.  I plan to blog more about Shon's work in this space, and here I will start with the start of his posting:

There is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.  Over the weekend, I posted both a law review article (entitled Second Looks & Second chances that will be published by Cardozo Law Review) and a sample brief (that will form the basis of challenging Adam Clausen’s ridiculous 213-year federal sentence).  Both discuss the reasons why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly. See 18 U.S.C. § 3582(c)(1)(A).

In my article, I explain that there is a long history of second look provisions in American law, and why second look provisions are normatively desirable.  More importantly, the text and history of Section 3582(c) supports the view that, when Congress first enacted the compassionate release statute in 1984, it intended compassionate release to act as a second look provision to take the place of federal parole, which Congress was abolishing.  The problem was that Congress gave the power to trigger a sentence reduction under the compassionate release statute to the Director of the Federal Bureau of Prisons (“BOP”).

Leaving the BOP Director with ultimate authority to trigger and set the criteria for compassionate release sentence reductions created several problems.  The Office of the Inspector General found that, among many other problems, the BOP failed to provide adequate guidance to staff regarding the criteria for compassionate release and that BOP had no timeliness standards for reviewing such requests.  As a result of these problems and others, the OIG concluded that: “BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”

Congress heard the complaints. Congress passed, and President Trump signed, the First Step Act of 2018, which, among other things, changed the procedures and ultimately the criteria for when a person in federal prison can seek a sentence reduction under the compassionate release statute in 18 U.S.C. § 3582(c)(1)(A)(i).  After the changes made by First Step, federal prisoners can file a motion for a sentence reduction, and federal district courts are authorized to reduce a sentence even if the BOP fails to respond or even in the face of BOP opposition to a sentence reduction.

Under the First Step Act, Congress took the power that previously resided with the BOP Director to trigger and set the criteria for sentence reductions and transferred it to Article III courts — where it should be.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?