Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act

Regular readers are surely familiar with the big deal I have long made about the statutory changes to the so-called compassionate release provisions in federal law via the FIRST STEP Act.  In posts here and here way back in February 2019, I was talking up these changes as the "sleeper provisions" in the Act because it now let persons in prisons move directly in court for a sentence reduction.  By May 2019, I was wondering aloud here about whether anyone was collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act.  From the get-go, I have tried to flag notable rulings granting sentence reductions under 3582(c)(1) since the passage of the Act, but the coronavirus pandemic created so much jurisprudence in this space that I was ultimately only able to do lengthy postings like this one of grants on Westlaw.

Against this backdrop, I was so very pleased to see that the US Sentencing Commission's big new report on "The First Step Act of 2018: One Year of Implementation" (discussed here, available here) includes a final section discussing "Compassionate Release" (at pp. 46-49).  Somewhat disappointingly, this section is quite brief and the data provided is not especially rich or detailed.  But some data is better than nothing and certainly worth reviewing:

During Year One, 145 motions seeking compassionate release were granted, a five-fold increase from fiscal year 2018 (n=24)... [and] of those motions granted during Year One, 96 (67.1%) were filed by the offender and 47 (32.9%) were filed by the BOP.... 

Offenders who benefited from compassionate release in Year One received larger reductions and served more time when compared to those granted release in fiscal year 2018. The average length of the reduction in sentence was 68 months in fiscal year 2018; sentences were reduced, on average, by 84 months in Year One.  The average months of time served at the time of release also increased, from 70 months to 108 months.  The average age at the time of release increased by ten years, from 51 years old at the time of release to 61 years old....

In Year One, most (81.4%) compassionate release grants were also based on medical reasons.  Of the 145 compassionate release motions granted, 118 were based on the medical condition of the defendant, 15 were based on age, two were based on family circumstances, and 15 were based on other extraordinary and compelling reasons.  Of the 118 granted for medical reasons, 75 were based on terminal illness, 31 based on a condition or impairment that substantially diminishes the ability of the defendant to provide self-care within the correctional facility environment, and in 12 the type of medical reason was not further specified.

An additional appendix (Appendix 4 on p. 71) provides a break-down of the guidelines under which these persons receiving sentence reductions were initially sentenced.  These data look somewhat comparable to the general federal prison population, as about half of the recipients were sentenced under the drug guideline.  But it seems white-collar guidelines and the robbery guideline may be somewhat over-represented, though that may reflect that these offenders are more likely to be older and/or subject to more extreme sentencing terms for various reasons.  Other than knowing that a lot more sentence reduction motions were granted in the first year after the FIRST STEP Act and that most were for medical reasons, these "raw" data do not tell us that much more about this interesting little part of the sentencing world.  (Notably, the USSC does not report at all, and may not be collecting, data on how many sentence reduction motions have been brought to, and have been denied by, district courts.  Grants only tells us only so much, though even grant data could and should be subject to some more detail analysis to help Congress and other assess whether this mechanism was working as intended in 2019.)

Critically, as the USSC report makes clear, its data here are from just the first full calendar year the First Step Act was in effect (“First Step Year One”) running from December 21, 2018 through December 20, 2019.  In other words, this report concerns entirely pre-COVID data, and that is HUGELY important because there has been, roughly speaking, about a nearly 20-fold(!) increase in sentence reductions grants over the last six months of our COVID era.  Specifically, the BOP is now reported at this FSA page that there have been "1,498 Approved" total post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  Doing the math, this seems to mean that while there were 145 motions granted in First Step Year One, there have been 1,353 more motions granted since that time (nearly all of which, I think, have been over the last six months).  Framed another way, we can say that, on average, in the year after passage of the FIRST STEP Act, roughly a dozen sentence reductions motions were granted each month, and now in the COVID-era, more than 220 are being granted each month!  

I sincerely hope the USSC is planning to do a more detailed and informative accounting of its First Step Year One data, as I think a lot could and should be learned from how judges responded to these motions before COVID.  But I am now even more interested to see data from the COVID era, as the number of cases (and probably the number of reasons for grants) has increased so dramatically.  At the same time, the relative rarity of these sentence reductions should not be forgotten.  With a federal prison population of around 175,000 through 2019, the USSC data show that less than 0.1% of all federal prisoners benefited from a sentence reduction that year.  With all new COVID grants, we still have well under 1% of the federal prison population receiving so-called compassionate release.  That still does not seem anywhere close to a lot or enough compassion to me.