How federal circuit courts apply a 2018 resentencing law varies greatly, underscoring the need to restore the U.S. Sentencing Commission that issues sentencing guidelines for all federal courts, according to a report released Thursday.

The report by the Sentencing Commission found that while federal circuit courts overall granted more compassionate release requests to have a person's prison sentence reduced in fiscal year 2020 than 2019, the courts didn't uniformly grant relief. Courts granted 1,805 requests in fiscal year 2020 and 145 requests in 2019.

The First Circuit, which consists of Maine, New Hampshire, Rhode Island and Massachusetts, had the highest compassionate release grant rate of 47.5%, and the Fifth Circuit, which includes Texas, Mississippi and Louisiana, had the lowest grant rate of 13.7%, according to the report.


Senior U.S. District Judge Charles R. Breyer, the sole remaining voting member of the commission, said in a statement Thursday that a lack of guidelines on applying the First Step Act's compassionate release provision has led to disparities in how relief is granted to people in prison.

"This report underscores why it is crucial for the commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release," Breyer said.

The sentencing commission is tasked with issuing federal advisory guidelines on the length of prison terms for district courts and conducting research on criminal justice system operations.

The commission hasn't had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019 when the First Step Act went into effect.

President Joe Biden, after a year in office, has yet to nominate new commissioners, keeping a potentially key player in justice reform on the sidelines, legal experts told Law360 in December 2021.

The First Step Act changed the compassionate release process to allow an individual in prison to petition a federal court for relief. Before the law was enacted, only the Federal Bureau of Prisons could submit compassionate relief requests.

The report found the number of compassionate release requests and grants went up in 2020 primarily because of the COVID-19 pandemic.

In more than 70% cases where relief was granted, courts cited health risks associated with the coronavirus as a reason for giving compassionate release, according to the report.

Other factors that impacted whether a person in prison was granted relief included age, length of original sentence and amount of time served, the report found.

Individuals aged 75 or older, who make up a smaller portion of prison populations, were granted compassionate release at the highest rate — more than 60%. Courts granted compassionate release at the lowest rate — less than 20%— to people under the age of 45, according to the report.

Liz Komar, sentencing reform counsel at The Sentencing Project, a nonprofit focused on reducing incarceration, told Law360 in a statement Thursday that the fact courts granted more relief to older people shows how compassionate release helped keep vulnerable people out of federal prisons during the pandemic.

"While that reflects the unique and ongoing threat of the pandemic, hopefully it will open the door to greater rates of compassionate release even after the pandemic ends," Komar said.

The report also found courts were less likely to grant relief to people serving longer prison sentences, between 10 and 20 years, or to people who had served an average of less than five years in prison.

The report concluded the pandemic made 2020 an atypical year for compassionate release requests.

"Despite examining an atypical year, the developing case law and data illuminate the growing need for a post-First Step Act compassionate release policy statement that can provide guidance to courts and facilitate greater uniformity," the report said.

Mary Price, general counsel for FAMM, a nonprofit seeking to end mandatory minimum sentencing, told Law360 in a statement Thursday the takeaway from the report for the next sentencing commission is that judges should be given the discretion to determine what circumstances merit compassionate release.

"The commission could not have imagined a global pandemic," Price said. "The BOP refused to acknowledge it as grounds for release and the government fought nearly every motion in court brought because of it. The next commission must ensure that judges have broad authority to identify grounds for compassionate release beyond those contemplated in the policy statement."

--Editing by Lakshna Mehta. Graphics by Ben Jay.