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December 29, 2023

Could Prez Biden really push the BOP to advance thousands more motions for compassionate release?

The question in the title of this post is promped by this new New York Times essay authored by Michael Romano titled "How Biden Can Tackle Mass Incarceration."   I recommend the piece in full, and here are excerpts:

As a candidate, Joe Biden said he would substantially reduce the federal prison population as president. Last week he commuted the sentences of 11 people who he said were serving unjustifiably harsh prison terms for drug offenses and also pardoned people convicted of certain marijuana charges.  Still, the number of people in federal prison has grown during the Biden administration.

Despite historical bipartisan support for sentencing reform, Mr. Biden has failed to fully embrace the momentum of his two immediate predecessors, who made substantial efforts to tackle mass incarceration.  Some have argued that his relative inaction on the issue may hurt him among key voting groups.  But it is not too late....

Mr. Biden can chart his own course by taking advantage of a little-used law that allows prison officials to recommend to federal judges that they re-evaluate sentences of people for “extraordinary and compelling reasons.” This can include people who are facing long sentences and have already served many years behind bars, have shown their commitment to rehabilitation and are prepared for release.

This approach, which could be called administrative clemency, is fairer, more transparent, more comprehensive and less politically complicated than traditional clemency. It is in step with reforms percolating through state legislatures that empower law enforcement agencies and judges to revisit old, unnecessarily harsh prison sentences. It also encourages people in prison to work on themselves through education, vocational training, counseling and drug treatment.

Prison officials are ideally situated to make this evaluation. Prosecutors, judges, the police and even defense lawyers tend to move on to other cases and often do not keep tabs on people sent to prison who have been working to rehabilitate themselves and are hoping for some kind of reprieve. But prison officials and staff members work with them daily and follow and chart their progress. The administrative clemency process empowers prison officials to identify suitable candidates for resentencing based on their behavior and rehabilitation. Those cases would be sent back to court, where a judge would make the final determination on whether a person’s sentence should be reduced.

Unlike clemency, this decision is made in open court, with arguments and evidence by prosecutors and defense lawyers. It also allows courts to consider and impose release plans that maximize public safety. Final determinations are made by federal judges with lifetime tenure who are distant from the politics that influence presidential-level decisions. In short, this process returns the case to where it belongs: in court, with all the legal protections, evidence and consideration criminal cases deserve.

While some people may be justifiably wary of investing so much power in prison officials, a similar process is working in California, which is infamous for having some of the country’s harshest sentencing laws and most overcrowded prisons, as well as what may be the nation’s most powerful prison guard lobby.  Over the past six years, under a program begun by Jerry Brown when he was governor, California state prison officials have recommended 2,200 people for sentencing reductions.  Before any candidates are released, they undergo thorough vetting by prosecutors and defense lawyers, and a judge determines whether continued incarceration is no longer in the interest of justice. There is little litigation because after a person is identified and endorsed by prison officials, it becomes clear that the sentence is unnecessarily long and counterproductive....

Administrative clemency, if the Biden administration pursues it, will not correct fundamental flaws in the criminal legal system.  It will not directly address racism, mental illness and bad social science that can be corrected only through comprehensive reform.  But it is something Mr. Biden can do to address thousands of unfair federal sentences without embroiling himself in the politics of clemency or legislation.  And it’s something he can do today.

Regular readers likely know I am a big fan of so-called second-look/compassionate release sentencing mechanisms — which this essay interestingly calls "adminstrative clemency" and which ought to be formally called a "reduction of imprisonment" process in the federal sysetm since 18 USC § 3582(c)(1)(A) speak to when a judge may "reduce the term of imprisonment."  So I really like the general suggestion that Prez Biden and his Administration seek to "address thousands of unfair federal sentences" through this mechanism.  But there are lots of challenging practicalities that make this essay seem a bit like wishful thinking to me.

For starters, Prez Biden's Department of Justice has, in various ways, opposed broad expanstion of sentence reductions under § 3582(c)(1)(A).  Most notably, DOJ officials have testified before the US Sentencing Commission against the approrpiateness of reductions based on changes in the law.  And, even after the USSC decided to authorize sentences reductions based on changes in the law in narrow circumstances, Biden's DOJ is aguing against the lawfulness of the USSC's new guideline terms.  In other words, with lawyers in Prez Biden's Department of Justice being generally oppositional to many sentence reductions, I would not expect them to be supportive of any efforts by the federal Bureau of Prisons to advance more of these motions.

More broadly, the recent activity surrounding sentence reductions under § 3582(c)(1)(A) over the last five years is the result of the FIRST STEP Act allowing prisoners to bring these motions directly to court without needing a filing by federal prison officials.  Congress was moved to allow prisoners to make these filings directly because BOP has long had a notorious record of almost never supporting a sentence reduction even for gravely ill inmates.  As many note, it seems the culture and practice of decision-mkaing by prison officials makes it much more likely that they will oppose requests for sentence reductions than support or advance them.  Perhaps a directive from Prez Biden could somewhat influence BOP culture and practice in this regard, but that seems like an evolution likely to take a long time to materialize.

Finally, though I do not know much about the California experience, sentencing reductions averaging around 370 persons per year in that jurisdiction actually amounts to less than what the federal system is already achieving on a steady basis based largely on prisoner motions.  The US Sentencing Commission's last compassionate release data report indicates that nearly 500 persons in federal prison secured prison-term reductions from July 2022 through June 2023.  (That data report also shows that nearly 5000 federal prisonsers received sentence reductions in less than four years from October 2019 through June 2023, though these numbers are driven by a COVID-era period that saw over 3000 reductions in about 15 months in 2020 and 2021.)  In other words, even without much help from DOJ and BOP, federal prisoners are already seeking, and federal judges are sometimes granting, sentence reductions on a steady basis.

That all said, it would still be great to see both DOJ and BOP become a lot more supportive of federal prisoner motions for sentence reductions.  The USSC data show that for every sentence reduction granted, there are four more that are denied.  Many of those denials, I suspect, are influenced by DOJ and BOP beig oppositional to the reduction.  If there were a way that Prez Biden could direct DOJ and BOP to be less oppositional to sentence reduction efforts, perhaps we would start to see the kind of culture change needed to really create a dynamic and effective corrective to "address thousands of unfair federal sentences."

December 29, 2023 at 05:48 PM | Permalink


When Trump wanted to meddle in the detailed workings of DOJ, he was accused, correctly, of violating a healthy tradition that keeps retail politics and the White House out. That same tradition should apply here.

Of course the "root cause" of incarceration is neither DOJ nor Presidential cogitation. The root cause is the defendant's criminal behavior, usually stealing in one form or another, or drug dealing, of alien smuggling, etc. If prospective criminals would lay off that stuff and get a normal job like the rest of us have to, it would take only a few years for the prison population to plummet.

Posted by: Bill Otis | Dec 29, 2023 11:34:48 PM

Thanks, Bill, for reminding us that overcharging and stratospheric mandatory minimums have nothing to do with over-incarceration. If these criminals would just act like us, everything would be fine. You could have written the classic observation that "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." (Jacques Anatole Francois Thibault, The Red Lily (Le Lys Rouge), 1894, chapter 7).

The author meant it to be wry, but you would have written it in all sincerity.

Posted by: Tom Root | Dec 30, 2023 7:42:20 AM

Tom Root --

"Thanks, Bill, for reminding us that overcharging and stratospheric mandatory minimums have nothing to do with over-incarceration."

Thanks, Tom, for reminding us that the criminal's greed and me-first attitude have nothing to do with the consequences he earns. Thanks also for taking today's prize (so far) for assuming your conclusion.

"If these criminals would just act like us, everything would be fine."

If they got a normal job like the rest of us, refrained from stealing, and stayed away from hard drugs, things would be a lot better, you bet. Do you deny it? Yes or no.

"It's always somebody else's fault" -- You could have, and in one way or another, you do, I would wager, write it all the time. It's the main thing I saw from defense counsel in my years as a prosecutor. Some of them actually believed it, while others just wrote it because it's The Main Mantra. Which are you?

Posted by: Bill Otis | Dec 30, 2023 10:00:02 AM

Bill - over emphasizing the defendant's behavior ignores the fact that individuals are very often shaped by forces beyond their control and that prison too often emphasizes the forces that lead to criminal behavior as well as ignores the fact that harsh sentencing too often only serves to make the public feel better rather than lowers crime. Happy New Year Bill.

Posted by: Brett Miler | Dec 30, 2023 1:44:03 PM

Brett --

And a Happy New Year to you as well.

Posted by: Bill Otis | Dec 30, 2023 4:05:52 PM

The New York Times seems to be making the case for the Biden Administration. They are supporting a process that will take clemency away from the Oval Office and give the responsibility to agencies. The BOP has not shown their commitment to shorten sentences made possible by the first step act.

The Biden Administration has the authority to grant thousands of clemency's without creating a new bureaucratic process at great expense.

Posted by: beth curtis | Dec 30, 2023 5:24:04 PM

"Over-incarceration" assumes the result. I suspect we actually have the opposite problem, too much tolerance for criminal behavior.

Posted by: Soronel Haetir | Dec 31, 2023 4:50:05 PM

Let's not ignore the elephant in the room: the Biden Admin is appropriately arguing that the Sentencing Commission has no business using its statutory authority to define "extraordinary and compelling" in 3582(c)(1)(A) to mean subsequent changes in law when courts defining that statutory term have said it does not bear that meaning. Doug is always in favor of any argument for reducing prison terms or prison population -- that is a policy position, not a legal position.

Posted by: Da Man | Jan 3, 2024 9:35:12 AM

Da Man: Let's not ignore that (a) courts have split on the proper interpretation of "extraordinary and compelling" term in 3582(c)(1)(A), and (b) that Congress in 28 USC 994(t) said expressly that the Sentencing "Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction."

In other words, Congress said expressly that it was the Commission's job to "describe what should be considered extraordinary and compelling reasons for sentence reduction." The Department of Justice obviously does not like --- on policy grounds --- how the Commission decided to do its job when it revised its sentence reduction policy statement. So now it is the US Justice Department, not me, seeking to advance a policy position instead of complying with what the law clearly provides.

Of course, Congress had a six-month review period to reject how the USSC did its assigned job when it wrote the new guideline if it viewed that guideline as legally or policy problematic. It did not even try. Congress also could amend 3582(c)(1)(A) or 994(t) or the guidelines at any time. It has not sought to do so. Congress seems just fine with the both the law and the policy as developed by the USSC. I do like following the law as put forth by Congress and the USSC, but it seems it is you and DOJ have different policy preferences.

Posted by: Doug B | Jan 3, 2024 12:33:14 PM

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