Who Is Eligible for a Sentence Reduction Under the First Step Act?

On December 21, 2018 President Trump signed the First Step Act into law. Among other things, it made the Fair Sentencing Act of 2010 retroactive.

Doing so made thousands of inmates convicted of crack cocaine offenses, and serving long prison terms for those crimes, eligible for shorter sentences. It also retroactively increased the amount of “good time” credit to which inmates are eligible from 47 to 54 days per year, a change that has resulted in the release of more than 3,000 men and women from federal prison.

But the First Step Act goes far beyond providing relief to those convicted of possessing and/or distributing crack cocaine and those who are entitled to increased “good time” credit. Buried within the First Step Act is a little known, but hugely powerful, means for reducing prison terms under 18 U.S.C. § 3582(c)(1)(A) for virtually any inmate who can present a court with any “extraordinary and compelling reason” for sentencing relief, even if those reasons have nothing to do with age and/or medical condition. This extraordinary expansion of federal judicial power to reduce (even to time served) bone-crushingly long prison terms imposed years or even decades ago has the potential to change thousands of lives for both inmates and their families.

The BOP’s Ineffective “Compassionate Release” Program

Congress enacted the modern form of compassionate release appearing in 18 U.S.C. § 3582(c)(1)(A) as part of the Comprehensive Crime Control Act of 1984.

It states that federal judges can modify a final “term of imprisonment” if and whenever “extraordinary and compelling reasons warrant such a reduction.” At that time, Congress conditioned the reduction of any final “term of imprisonment” upon the filing of a motion by the Director of the BOP requesting such a reduction. Thus, practically speaking, the Director of the BOP – and only the Director of the BOP – was empowered to determine which inmates qualified for compassionate release because the Director of the BOP was the only person authorized by law to file a motion for compassionate release.

As anyone who has a family member or loved one serving federal time knows, the Director of the BOP almost never files motions for compassionate release. In fact, the Office of the Inspector General of the U.S. Department of Justice found in a 2013 report that the Director of the BOP rarely filed 18 U.S.C. § 3582(c)(1)(A) compassionate release motions, even for inmates who objectively met the criteria for “compassionate release” set by the U.S. Sentencing Commission. It was, for all intents and purposes, a failed program.

New Life to “Compassionate Release” Under the First Step Act

All of that changed with the First Step Act.

Instead of relying on the Director of the BOP to determine whether compassionate release is warranted and instead of relying on the Director of the BOP to file a motion for compassionate release, inmates themselves (or a lawyer acting on behalf of an inmate) can now file motions for compassionate release directly with their sentencing courts as long as they first exhaust their “administrative remedies,” meaning that they must file a request for compassionate release with the warden of the facility in which they are being held and either have that request rejected or await the passage of more than 30 days from the making of that request, whichever is earlier. It’s really that simple.

The First Step Act’s Compassionate Release Provisions Apply to All Inmates, Even Those Who Are Not Old and/or Sick

In the federal criminal justice system, sentences are final when imposed. Parole has been abolished. And no “second look” mechanism exists, even for those who have been imprisoned for decades and for whom continued confinement can no longer reasonably be justified on moral or utilitarian grounds.

Today, though, there is a way “out” for virtually any inmate, as long as that inmate can show “extraordinary and compelling reasons” for a reduced sentence, even to time served.

Until passage of the First Step Act, only the Director of the BOP was authorized to file a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). But with the restructuring of 18 U.S.C. § 3582(c)(1)(A) under the First Step Act, sentence reduction motions not only no longer rely on the whims of the Director of the BOP but also now no longer need to be based on age, medical condition or extreme family circumstances. Rather, 18 U.S.C. § 3582(c)(1)(A) now essentially provides that any judge can make his/her own determination of what constitutes “extraordinary and compelling reasons” sufficient to justify a sentence reduction for any inmate who exhausts his/her administrative remedies and then files a motion for a sentence reduction. That’s precisely what the judge did in United States v. Cantu, reducing an inmate’s sentence based on “extraordinary and compelling reasons” having nothing to do with his age, health or family circumstances.

This groundbreaking change in the law opens the door for virtually any inmate with any genuinely “extraordinary and compelling” circumstances to file an 18 U.S.C. § 3582(c)(1)(A) motion for a reduction of his/her prison term – even to time served – after exhausting the BOP’s administrative remedies, which, as described above, takes 30 days or less.

We know that there are many elderly and/or sick inmates out there who are genuinely deserving of compassionate release. We also know that there are many other inmates out there who are deserving and worthy of a “second look” – that is, who can present “extraordinary and compelling reasons” for a reduced sentence that judges, before passage of the First Step Act, were not legally authorized to consider.

A Skilled Attorney Can Help You Get a Sentence Reduction

If you believe that a member of your family or a loved one is potentially worthy of compassionate release, or is serving a long federal sentence and presents any genuinely “extraordinary and compelling reasons” for a sentence reduction (even if unrelated to age or health), we may be able to help. Contact us today at 212.455.0335 or reach out to us through our online form to schedule a free and confidential consultation.

Attorney Harlan Protass

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