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April 24, 2020

Some exhausted musings on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A)

I tend to start many mornings these COVID-tainted days on Westlaw checking out new district court opinions responding to motions by persons in federal prison seeking a sentence reduction under § 3582(c)(1)(A).  A dozen or more new opinions appear each day now, but many deny relief simply on the basis of the so-called "exhaustion" procedural requirement in § 3582(c)(1)(A).  A few weeks ago, I discussed in this post the sloppy Third Circuit panel dicta on this issue in Raia, and it is frustrating (but not surprising) that many district courts nationwide are now citing Raia when rejecting motions under § 3582(c)(1)(A) on this procedural ground.  At the end of another long week, I wanted to explain why it seems to me misguided, on various grounds, to interpret this "exhaustion" procedural requirement as an absolute bar to courts considering the merits of sentence-reduction motions under § 3582(c)(1)(A). 

First, the statutory basics. The text now of § 3582(c)(1)(A), after amendment by the FIRST STEP Act (in bold), provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier." 

Based on the text alone, I can understand why courts read this provision as precluding consideration of a prisoner's sentence-reduction motion until at least 30 days after a BOP request is made by the defendant.  As I explained in my Raia post, this provision is pretty clearly not jurisdictional because the language and structure make it much more what the Supreme Court calls a "nonjurisdictional claim-processing rule."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  Still, even as a claim-processing rule, the text is seemingly clear and mandatory: "The statute provides no exceptions to the exhaustion requirement, and the Supreme Court has clearly stated that courts may not manufacture exceptions where they do not exist." United States v. Miamen, No. 18-130-1 WES, 2020 WL 1904490 (D RI Apr. 17, 2020).  Further, as another court has put it: "the administrative exhaustion requirement for compassionate release motions serves important policy functions [because the] BOP is often in the best position to evaluate the scope of an inmate’s medical condition, the adequacy of the release plan, and any danger posed to the community if they are released."  United States v. Gamble, No. 3:18-cr-0022-4(VLB), 2020 WL 1955338 (D Conn Apr. 23, 2020).

Though this basic textual and policy analysis is not misguided, it largely looks past all the reasons that Congress in the FIRST STEP Act enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by BOP.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper.  Critically, with the FIRST STEP Act revision, Congress did not actually require defendants to exhaust the BOP motion-request process before turning to the courts — which would have made sense if Congress still trusted the BOP process to some extent; Congress added, critically, that a sentence-reduction motion could be considered after "the lapse of 30 days from the receipt of such a request."  Put another way, this statute actually does have an express exception to a true exhaustion requirement in the form of the "lapse of 30 day" provision.

But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  In the word of one court:  "The question therefore becomes whether applying equitable exceptions to section 3582(c)(1)(A) would be incompatible with Congressional intent .... [and] this Court agrees with Judge Rakoff that 'Congress cannot have intended the 30-day waiting period ... to rigidly apply in the highly unusual situation in which the nation finds itself today'."  United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020). 

Especially important here seems to be a consideration emphasized in this New York Times editorial: "Releasing these prisoners during this crisis is not just an act of mercy to protect prisoners’ health, [it also serves] the health of the prison staff.  Fewer sick inmates means less strain on the already burdened prison hospital system."  Does it really make sense to believe Congress would want courts to refuse to consider (for a few weeks) a request for a sentence reduction when any delay will further imperil prison staff as well as inmates?  In normal times, the procedural requirement of § 3582(c)(1)(A) shows some respect for BOP officials; in COVID times, rigid application may inadvertently cost the lives of some BOP officials.

Last but not least, at a time when at least 24 federal inmates have died from COVID and in a week in which a federal judge has found that federal inmates in one facility "have demonstrated a likelihood of success on the merits" of an Eighth Amendment claim, an equitable exception to the procedural requirement of § 3582(c)(1)(A) arguably has a strong constitutional foundation.  I say this because, in order to prevail substantively, a defendant seeking a sentence reduction under § 3582(c)(1)(A) must make the case that "extraordinary and compelling reasons warrant" a reduction with consideration given also to "the factors set forth in 3553(a)."  In other words, the only persons who are ultimately impacted by so-called "exhaustion" requirement are those who can make a truly compelling case to a federal judge that, consistent with congressional sentencing purposes, a shorter sentence is now justified.  Amidst a pandemic which has already killed dozens of federal prisoners, to deny deserved substantive relief on questionable procedural grounds strikes me as quite constitutionally suspect. 

April 24, 2020 at 01:50 PM | Permalink


Judge Alison Nathan (SDNY) persuasively made these points and several others in a recent opinion excusing compliance with the exhaustion requirement. United States v. Scparta, No. 18-CR-578 (AJN), 2020 WL 1910481 (S.D.N.Y. Apr. 20, 2020)

Posted by: JJ | Apr 24, 2020 4:38:23 PM

Scarpa is now also available at this link: https://casetext.com/case/united-states-v-scparta

And Scarpa also references Haney and Russo in the analysis, which are available:

Posted by: Doug B | Apr 25, 2020 2:20:33 PM

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