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June 27, 2022

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

June 27, 2022 at 04:33 PM | Permalink


Professor, excellent argument that should persuade the courts.

Posted by: Michael R. Levine | Jun 27, 2022 5:49:28 PM

I have rock bottom expectations for this Court and can see them saying non-retroactive changes can't be part of determining an inmate's "eligibility" for a sentence reduction, but can be considered under the 3553(a) factors to deny or grant CR. That's what the Third, Sixth, Seventh, and Eighth have held, I believe. I can see them looking back at Concepcion through those lens. Despite the good dicta you quoted, the issue in Concepcion seems to emphasis the post-"eligibility" analysis--i.e. once eligibility is shown, what can the court consider?

But I hope you're right and that I'm wrong!

Posted by: Tom Church | Jun 28, 2022 10:28:33 AM

going to link to your analysis in a post on our blog, the Federal Docket, if that's alright with you!

Posted by: Tom Church | Jun 28, 2022 10:29:10 AM

Feel free to use my text in any way, Tom, and I understand your concerns about limits. But note some this key language from the Court: "It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding WHETHER, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained."

Posted by: Doug Berman | Jun 28, 2022 11:15:31 AM


I agree with you 100%. This was the first take away in my office after we read the opinion yesterday. It has far broader implications for 3582(c)(1)(A) motions. Most people who could file a Section 404 motion have already taken their shot. At least now you have a chance to try and re-open the door on 3583(c)(1)(A) in the 3rd, 7th, 8th, and 11th (6th is a mess and I wouldn't even bother there right now).

Spot on analysis as per usual.

Posted by: Zachary Newland | Jun 28, 2022 11:51:37 AM

I'm filing an appeal to a compassionate release motion which was denied in the NDTX. I'm wondering - do you believe anything in this ruling speaks to the Circuits' "abuse of discretion" standard in reviewing compassionate release motions?

Posted by: Liz | Jul 11, 2022 1:21:29 PM

I am a Federally Retired United States citizen who has a loved one incarcerated who has petitioned the courts for compassionate release and reduction in sentencing. I just want to say how much I enjoy reading your blogs as it helps breakdown the law by all accounts. In regards to the July 11th Blog, this is what I summed up and you are welcome to tell me if I am on point because I am by no means a lawyer.

Here it goes:

Why do I get the feeling that some circuits are not trying to give defendants reduced sentences by justifying it with all this extra-textual bullshit.

Are they not to focus on what Congress and the Constitution has already made clear that District Judges are allowed to reduce sentences based on ALL information to include the decisions made in the Concepcion case if you ask me.

These Circuits are hung up on extra wording to make “extraordinary and compelling” appear less attractive because the circuits are just that ugly.

Is the Third, Sixth, Seventh, and Eighth Circuit more powerful than Congress?

New laws and decisions made by Congress and the Constitution ought to be enough to consider a matter “extraordinary and compelling” when Congress intervene about it.

For a case to reach the heights of the Supreme Court is compelling and outstanding if you ask me!!!


Posted by: Regina Parker | Jul 13, 2022 1:35:12 PM

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