by Casey J. Bastian

In September 2022, the U.S. ­Sentencing Commission (“USSC”) published its Compassionate Release Datafile (“Datafile”). The Datafile reported the statistics concerning motions for compassionate release filed between October 1, 2019, through March 31, 2022. In that 30-­month period, 26,212 filed cases were reported to the USSC. A significant portion of those were filed by pro se prisoners as allowed by recent amendments under the First Step Act of 2019 (“FSA”).

The FSA went into effect on December 21, 2018. Section 603 of the FSA amended 18 USC § 3582(c)(1)(A). This amendment allows for prisoners to file a motion for reduction in sentence (“RIS”) without prior approval of Bureau of Prison’s administrators. Prior to the amendment of § 3582(c)(1)(A), courts could consider such motions “only if filed by the Director of the Bureau of Prisons.” Such motions were rare as you can probably imagine.

The amended § 3582(c)(1)(A) now requires only that a motion be filed “after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring such a motion on the defendant’s behalf or the lapse of 30 days from receipt of such request by the warden of the defendant’s facility, whichever is earlier.”

The “lapse of 30 days from receipt” language is a tacit admission by lawmakers that the BOP is rarely magnanimous and that the administrative remedy program moves at glacial speeds – if providing any relief at all. A prisoner who otherwise qualifies for relief under § 3582 might be seriously harmed in the intervening months between request to the warden and final exhaustion at the Central Office level. The FSA works to cure that legitimate concern.

The amendment came at a fortuitous period for all prisoners. With Covid-­19 right around that corner, prisoners had a reasonable procedural shot at petitioning the court for an RIS, often referred to as a motion for “compassionate release.” And considering the horrible job of the BOP in mitigating the pandemic and protecting the highly-­vulnerable populations in the institutional setting, prisoners’ concerns for their health and safety were substantial and legitimate.

The USSC released the Datafile as “part of its ongoing mission.” That mission is to provide “Congress, the judiciary, the executive branch, and the general public with data” taken from sentencing documents submitted to the USSC. Such data is normally published in the USSC’s Annual Report and the Sourcebook of Federal Sentencing Statistics.

As a result of the Covid-­19 pandemic, the “courts received thousands of compassionate release motions, most filed by offenders.” The Datafile reports the analysis of these RIS motions filed during the pandemic. This includes records for all 26,212 motions filed whether granted or denied. Prior to October 1, 2020, courts only provided the USSC with records of motions granted. Of these 26,212 cases reported, 796 were excluded from analysis “due to indeterminable motion status.” Thus, the analysis is of 25,416 court proceedings.

The Datafile breakdown of reported, complete case records are covered in 14 Tables (some with accompanying Figures). Take for example, Table 1 which lists “motions for compassionate release by month of court decision.” Table 1’s accompanying Figure 1 is a chart of that data. According to Table 1, over 71 percent of all motions were filed during the height of the Covid-­19 pandemic. From June 2020 through May 2021, 18,265 motions were filed.

Of the 25,416 total motions filed, only 16.7 percent (or 4,234) were granted. On average, the same percentage was granted of the 18,265 filed by pro se prisoners. The largest percentage of granted motions by month overall was October 2019 (75.9 percent); during the height of the pandemic period, it was July 2020 (25.7).

The top five districts in which motions were filed are Southern District of Florida (1,108 total/147 granted), Eastern District of Virginia (915/139), Middle District of Florida (886/51), District of Maryland (738/244), and Northern District of Texas (688/38). The highest rate of motions granted was Puerto Rico at 82.1 percent – albeit, that was only out of 28 total motions.

As to districts with at least 150 motions filed, the five most favorable were District of Oregon (169 filed/100 granted), Northern District of Georgia (174/80), District of Massachusetts (174/78), District of Kansas (234/98), and Southern District of California (247/96). The least favorable in the same category were Southern District of Georgia (272 filed/266 denied), Eastern District of Texas (387/377), Eastern District of Arkansas (185/179), Western District of North Carolina (611/585), and Middle District of Pennsylvania (419/397). Overall, the Virgin Islands was the harshest, denying 100 percent of all motions filed, although it was only a total of six.

The Datafile reflects that the amount of time served on the original sentence is an important factor. The overall rate of motions being granted is 16.6 percent. For offenders sentenced in 1990 (the first year listed in Table 4), the rate was 66.7 percent. For all offenders who filed and were originally sentenced between 1990-­1999, the rate of such motions being granted was 43 percent. This percentage declined precipitously as the length of time served diminished. For offenders sentenced as recently as 2021, only 11 percent were granted.

Of the 4,225 total motions granted, 4,071 (96.4 percent) were filed by the offender (i.e., prisoner), 41 (1.0) by the Director of the BOP, seven (0.2) by the U.S. Attorney, and 106 (2.5) were by joint motion. Nearly 60 percent of all motions granted were for offenders sentenced to at least 10 years. For originally imposed sentences of 10-­20 years, 28.3 were granted; for sentences of 20+ years, 27.9 percent were granted. And while the largest volume of motions filed was 4,195 for offenders sentenced in 2019, only 13.4 percent were granted.

Demographic statistics were broken down into five categories. They are race/ethnicity, citizenship, gender, average age at original sentence, and average age at release. As to race/ethnicity, it is White (1,348 granted/6,578 denied), Black (1,910/10,224), Hispanic (757/3,542), and Other (166/721). As to citizenship, it is U.S. Citizen (3,781/19,443) and non-­Citizen (374/1,623). As to male, it is (3,819/19,241) and female (413/1,931). As to average age at original sentence, it is (42/39), and as to average age at release, it is (50/45).

Criminal History I and VI fared the best with 29.9 and 29.1 percent respectively granted. Sentencing factors related to weapon, safety valve, Guideline role adjustment, sentences relative to Guideline range and career offenders (§ 4B1.1) were generally equally granted or denied at the same rate. The top five crimes receiving relief were: drug trafficking (2,222), firearms (513), robbery (425), fraud/theft/embezzlement (368), and money laundering (146). As to motions denied: drug trafficking (10,917), firearms (3,104), robbery (1,698), fraud/theft/embezzlement (1,545), and child pornography (895).

The Datafile also breaks down reasons given by courts for granting or denying motions by fiscal year. The top five reasons given for granting RIS motions by year are: (Fiscal Year 2020) Covid-­19/pandemic, missing/no reason provided, serious physical or medical condition (USSG § 1B1.13, Note 1(A)(ii)), terminal illness (USSG § 1B1.13, Note 1(A)(i)), and rehabilitation; (Fiscal Year 2021) the same as to the first four reasons and the fifth was multiple 18 USC § 924(c) penalties; and (Fiscal Year 2022) was same as for first three, multiple 19 USC § 924(c) penalties, and missing/no reason given round out the top five reasons. The top reasons for denial across all three years include: 18 USC § 3553(a) factors, no extraordinary and compelling reason provided, not at risk from Covid/pandemic, protection of the public, failure to exhaust administrative remedies, and insufficient proof of serious physical and medical condition.

What is quite clear is that many more prisoners were afforded relief in the form of an RIS after the FSA took effect than ever before. It is arguable that the BOP was an impediment to those who otherwise should have been granted relief for whatever applicable reasons existed. For years, extraordinary and compelling reasons existed warranting relief, but no relief was given. That has now changed. While the rate of motions filed has decreased since the pandemic was officially considered ended, the viable mechanisms of § 3582(c)(1)(A) remain available. We may be witnessing the beginning of a new era. This data can be used to craft appropriate motions that have an increased likelihood of success on the merits. After all, America’s justice system could use some compassion.  

Source: U.S. Sentencing Commission, Compassionate Release Datafile

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