Jaden Lessnick1Jaden Lessnick is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He is especially grateful for the insight of Professor Erica Zunkel, whose support and compassionate release expertise were invaluable in drafting this Case Note. He also thanks Professors Alison Siegler and Judith Miller, Reagan Kapp, Matthew Makowski, Benjamin Klein, and the University of Chicago Law Review Online team.
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The area of law colloquially known as compassionate release—which allows prisoners to seek sentence reductions or early release from incarceration under limited circumstances—garnered heightened attention at the height of the COVID-19 pandemic. Indeed, perhaps no group of people is more vulnerable to the coronavirus than incarcerated individuals. One public health expert, for example, commented: “Due to overcrowding, lack of resources, and little access to medical care, incarcerated people have been at high risk for contracting COVID-19.” Consequently, many prisoners with underlying comorbidities that raise the risk of a severe or deadly infection have sought compassionate release, especially as new variants emerge that challenge the efficacy of vaccines. Prisoners and advocates have built on the increased legitimacy and availability of compassionate release due to COVID-19 to test the extent to which compassionate release on other grounds, such as excessive sentences or racially selective law enforcement tactics, may authorize sentencing reductions.
This Case Note analyzes the Seventh Circuit’s attempt to test the newly fluid bounds of compassionate release. In United States v. Thacker (7th Cir. 2021), the court held that nonretroactive sentencing amendments are not a valid basis for compassionate release. In explicating this legal development, this Case Note argues that the Thacker misinterprets the legislative history of the compassionate release statute and the Seventh Circuit’s own precedent. Accordingly, it contends that a case-by-case assessment of whether a nonretroactive sentencing amendment can justify compassionate release is a more faithful application of the interpretive and precedential principles that guide the Seventh Circuit.
This Case Note begins by describing the general standard for obtaining compassionate release. It then describes the First Step Act of 2018 and Congress’s decision not to make certain sentencing amendments retroactively applicable. This Case Note next explains Thacker’s bar on nonretroactivity-based compassionate release and its associated consequences before illuminating the interpretive and precedential shortcomings of the Seventh Circuit’s decision. It concludes by advocating for an approach that allows district courts to exercise their compassionate release discretion by considering nonretroactive sentencing amendments in combination with other individualized reasons favoring release.
II. The Compassionate Release Legal Standard
Courts’ limited authority to alter a sentence after its imposition emanates from 18 U.S.C. § 3582(c)(1)(A). This provision is the statutory basis for compassionate release and sets forth specific conditions under which courts may reduce a sentence. Historically, only the Director of the Bureau of Prisons (BOP) could move for compassionate release on behalf of a prisoner. Before granting compassionate release, courts were to ensure that “such a reduction [was] consistent with applicable policy statements issued by the Sentencing Commission.”
Federal Sentencing Guidelines § 1B1.13, which has come to be known as the Policy Statement, was the relevant statement issued by the Sentencing Commission. The Policy Statement narrowed the instances in which a prisoner could obtain compassionate release upon the Director’s motion. Specifically, a court could reduce a prisoner’s sentence if there existed “[e]xtraordinary and compelling reasons warrant[ing] the reduction,” or if the defendant2This Case Note uses “defendant” and “prisoner” interchangeably to refer to incarcerated individuals seeking compassionate release. was at least seventy years of age, was not a danger to the safety of any individual or the community, and had served at least thirty years of a sentence imposed under 18 U.S.C. § 3559(c).
The Policy Statement contains an Application Note clarifying what, at the time, constituted extraordinary and compelling reasons favoring release. The Note lists three such circumstances: (i) terminal or severe illness from which the defendant is not expected to recover; (ii) old age (over the age of sixty-five) accompanied by a deterioration in physical or mental health; or (iii) the “death or incapacitation of the caregiver of the defendant’s minor child or minor children.”
Even if prisoners satisfied these factors, judges were required to analyze whether the 18 U.S.C. § 3553(a) factors permitted release. Those factors include, among others, a prisoner’s criminal history, the need for the sentence to deter future criminal behavior and promote respect for the law, and the nature and circumstances of the offense. Consequently, even if a prisoner established extraordinary and compelling circumstances as defined by the Application Note, a judge could have still denied a sentence reduction.
But in 2018, Congress passed the First Step Act of 2018 (FSA), which amended § 3582(c)(1)(A) to allow a court to reduce a sentence “upon motion of the defendant,” instead of solely upon motion of the Director of the BOP. The statutory factors that prisoner-initiated compassionate release motions must satisfy are nominally identical to the previous statutory requirements. A prisoner must demonstrate that extraordinary and compelling reasons warrant a reduction, that a reduction would be consistent with “applicable policy statements issued by the Sentencing Commission,” and that compassionate release is consistent with the § 3553(a) factors.
In every circuit but the Eleventh, only two of these statutory requirements are operative: the extraordinary and compelling element and the § 3553(a) element. An “overwhelming majority of the courts of appeals” have held that there no longer exist any “applicable policy statements” because the extant Policy Statement refers only to compassionate release motions filed by the Director of the BOP. Because the FSA authorizes defendant-initiated motions, the narrow confines of the Policy Statement and its Application Note are generally inapplicable. Thus, district judges have considerable discretion to determine what constitutes an extraordinary and compelling reason favoring release, creating controversy over the outer limits of this discretion.
In sum, the extant legal standard requires judges to proceed in two steps. First, they must exercise their discretion in assessing whether a prisoner has provided extraordinary and compelling reasons favoring compassionate release, such as a high degree of vulnerability to COVID in prison or the “injustice and unfairness of a prosecution.” Second, judges must consider whether release comports with the § 3553(a) factors, such as the need for a sentence to deter future criminal conduct, protect the community from the prisoner, and reflect the seriousness of the offense. Even if a judge finds that a prisoner has supplied extraordinary and compelling reasons, she may still deny relief if the § 3553(a) factors counsel against release.
III. Nonretroactivity and the First Step Act of 2018
Circuits have disagreed about whether a nonretroactive sentencing amendment can constitute an extraordinary and compelling reason favoring release. The FSA reformed several components of the federal criminal sentencing system, at times eliminating overly harsh sentence enhancements. Of importance in Thacker was the FSA’s elimination of 18 U.S.C. § 942(c)’s stacked penalty provision (which required consecutive rather than concurrent sentences for firearm possession and use) and reduction of the attached mandatory minimum sentences.
In § 403(b) of the FSA, Congress made clear that the Act’s amendment to § 924(c) “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Consequently, the anti-stacking amendment applies only prospectively, rendering it inapplicable to defendants sentenced before the FSA’s enactment.
Nevertheless, prisoners across the country have moved for compassionate release on the basis of the FSA’s nonretroactive amendments. They contend that their sentences are excessive and disparate relative to those sentenced after the FSA’s passage. Several district courts have concluded that disparities between pre- and post-FSA sentences are independently sufficient to constitute an extraordinary and compelling reason favoring release.
But in United States v. Thacker (7th Cir. 2021), the Seventh Circuit slammed the door shut on compassionate release claims based on the FSA’s nonretroactivity, a development to which this Case Note now turns.
IV. Thacker and Its Consequences
In 2002, Ross Thacker was convicted of several armed robberies in Illinois, including two violations of 18 U.S.C. § 924(c). The district court imposed a thirty-three-year sentence consisting of the thirty-two-year mandatory minimum sentence—seven years for Thacker’s first § 924(c) violation and a consecutive twenty-five years for the second violation—and one year for commercial robbery. Had Thacker been sentenced after the FSA’s passage, he would have faced only a fourteen-year mandatory minimum (seven years for each § 924(c) violation). Thacker moved for compassionate release in September of 2020 based on the theory that the FSA’s nonretroactive amendment to § 924(c) constitutes an extraordinary and compelling reason favoring his early release.
The Seventh Circuit denied relief, holding that the amendment to § 924(c), “whether considered alone or in connection with other facts and circumstances, cannot constitute an ‘extraordinary and compelling’ reason to authorize a sentencing reduction.”
As an initial matter, the court concluded that “the First Step Act’s anti-stacking amendment applies prospectively.” This conclusion is not especially controversial. Even courts that have granted relief based on the FSA’s reforms—such as the Fourth Circuit in United States v. McCoy (4th Cir. 2020) and the First Circuit in United States v. Ruvalcaba (1st Cir. 2022)—have confirmed that the anti-stacking amendment is nonretroactive. The Thacker court further determined that the nonretroactivity of the anti-stacking amendment was a conscious choice on the part of Congress, which had “charted a different course in other provisions of the [FSA].” For example, the FSA retroactively eliminated many of the sentencing disparities between violations for crack and powder cocaine. The court held that “[t]hese distinctions matter, and they are the ones reserved for Congress to make. Interpreting § 403 to apply retroactively would unwind and disregard Congress’s clear direction that the amendment apply prospectively.”
The court acknowledged that § 3582(c)(1)(A) gives “district courts [ ] broad discretion to determine what else may constitute ‘extraordinary and compelling reasons’ warranting a sentence reduction.” However, it stressed that this discretion is not without limits and “cannot be used to effect a sentencing reduction at odds with Congress’s express determination” that the § 924(c) sentencing amendment applies only prospectively.
The Seventh Circuit has therefore categorically precluded prisoners from raising nonretroactive sentencing amendments as extraordinary and compelling circumstances. The ruling blocks this avenue even if those amendments create severe disparities between pre- and post-FSA sentences.
But a more subtle consequence may emerge from the court’s logic. The Seventh Circuit’s reasoning suggests that if Congress has not acted retroactively to reduce a particular mandatory minimum, the disparity between pre- and post-FSA sentences cannot be extraordinary or compelling. The Thacker court opined that motions turning on the “outdated legislative choice by congress” or “a misguided view of the purposes of sentencing . . . . cannot supply an extraordinary and compelling reason to reduce a lawful sentence.” So long as a sentence is lawfully imposed, Thacker precludes prisoners from arguing that a feature of their sentences (such as its length or disparities with other sentences) constitute an extraordinary and compelling reason. The Seventh Circuit later elaborated in United States v. Ugbah (7th Cir. 2021): “We explained in Thacker that § 3582(c)(1) does not treat a long but lawful sentence as itself an extraordinary or compelling reason.”
Separately, Thacker deepens an ongoing circuit split. In addition to the Seventh Circuit, the Third and Eighth Circuits have held that nonretroactive sentencing amendments cannot constitute extraordinary and compelling reasons. The Sixth Circuit has an “intra-circuit split” on this issue, and recently granted hearing en banc to resolve the issue.3See United States v. McCall, 29 F.4th 816 (6th Cir. 2022). In contrast, the First Circuit (United States v. Ruvalcaba (1st Cir. 2022)), Second Circuit (United States v. Halvon (2d Cir. 2022)), Fourth Circuit (United States v. McCoy (4th Cir. 2020)), and Tenth Circuit (United States v. McGee (10th Cir. 2021)) generally allow nonretroactive sentencing amendments to supply extraordinary and compelling reasons when considered in the context of the prisoner’s individualized circumstances. This latter approach—a case-by-case determination of the sufficiency of claims based on nonretroactivity—aligns most closely with Congress’s intent. In charting a different path, the Thacker court departed not only from the clear legislative history on this issue, but also from the Seventh Circuit’s own compassionate release jurisprudence.
V. Thacker’s Interpretive and Precedential Errors
The Thacker court erred in barring relief on the basis of nonretroactive sentencing amendments. In doing so it misinterpreted Congress’s intent vis-à-vis the FSA and compassionate release law as well as its own precedent.
The Seventh Circuit’s decision relies exclusively on § 403(b) of the FSA—which makes the anti-stacking amendment prospective only—and no other indicia of congressional intent. The court concluded that this deliberate choice by Congress evinces a clear desire to limit the possibility of compassionate release on the basis of the disparities created by the FSA’s sentencing amendments; if Congress had intended the resulting disparities to supply the basis for relief, the argument goes, it would have made its anti-stacking amendments retroactive (as it did with amendments to mandatory minimums for crack cocaine in § 404).
This inference goes too far and takes an unsupported logical leap. The fact that Congress chose not to authorize automatic relief for every person sentenced prior to the FSA does not mean that it intended to bar relief for all prisoners who failed to benefit from the FSA’s sentencing amendments. The Fourth Circuit pertinently elaborated in McCoy: “[T]here is a significant difference between automatic vacatur and resentencing of an entire class of sentences . . . and allowing for the provision of individual relief in the most grievous cases” (citation omitted). There is nothing in the text or legislative history of the FSA or compassionate release statute conclusively showing that because “Congress chose to foreclose one avenue for relief,” it “chose to foreclose all means of redressing draconian sentences imposed under § 924(c).”
Beyond Thacker’s logical leap, its reasoning elides clear evidence of congressional intent to allow nonretroactive sentencing amendments to serve as extraordinary and compelling reasons in an individualized determination of a prisoner’s eligibility for compassionate release. The main Senate report emphasizes that the “‘safety valves’ contained in this subsection . . . assure the availability of specific review and reduction of a term of imprisonment for ‘extraordinary and compelling reasons’ and to respond to changes in the Guidelines.” Most importantly, “there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. . . . [including] cases in which the sentencing guidelines for the offense . . . have been later amended to provide a shorter term of imprisonment.” Compassionate release, then, was intended to create an individualized analysis of a prisoner’s circumstances, including prospective sentencing amendments. (It would have been unnecessary for the Senate Judiciary Committee here to comment on retroactively applicable amendments, because beneficiaries of such retroactive amendments would not need to rely on compassionate release.)
This piece of legislative history also refutes Thacker’s conclusion that “compassionate release on the basis that the prescribed sentence is too long, rests on a misguided view of the purposes of sentencing, [or] reflects an outdated legislative choice by Congress. . . . offends principles of separation of powers.” The report emphasizes that the § 3582 safety valve “applies, regardless of the length of the sentence, to the unusual case in which the defendant’s circumstances are so changed . . . that it would be inequitable to continue the confinement of the prisoner.” One such change in circumstance could be updated views about the purpose of a particular sentence, expressed through sentencing amendments, in combination with a prisoner’s other individualized circumstances, such as evidence of rehabilitation. The Senate Judiciary Committee report explains that this approach “keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.” Consequently, compassionate release is a safety valve to obtain release for extraordinary and compelling reasons even when there is no other statute providing relief.
In the pre-Thacker decision United States v. Black (7th Cir. 2021), the Seventh Circuit relied on this understanding of compassionate release to align with the other side of the circuit split. There, the court held that “Congress’s policy choice not to make the changes to § 924(c) categorically retroactive does not imply that district courts may not consider those legislative changes when deciding individual motions for compassionate release like this one.” As the court’s references to cases like McCoy make clear, sentencing amendments can supply extraordinary and compelling reasons even when Congress does not make such amendments retroactive. “To the contrary, the purpose of compassionate release under § 3582 is to allow for sentencing reductions when there is no statute affording such a reduction but where extraordinary and compelling reasons justify that relief.”
The Thacker court attempted to distinguish Black by stating that Black’s reference to nonretroactive sentencing amendments did not occur in the context of extraordinary and compelling reasons, but rather in the second step of the compassionate release inquiry—that is, whether the § 3553(a) factors (like the prisoner’s criminal history or the seriousness of the offense) support release. According to Thacker, “Black, by contrast, principally concerned whether the district court in that case should have weighed the change to § 924(c) when applying the § 3553(a) factors after the prisoner identified . . . [a separate] extraordinary and compelling reason for release.”
This reasoning is unpersuasive. Black’s holding was far more complicated than the Thacker court acknowledged. Although both the prisoner and government had agreed that the prisoner’s cancer diagnosis supplied an extraordinary and compelling reason, the Black court also considered whether nonretroactive sentencing amendments could constitute extraordinary and compelling circumstances. The Black court reasoned that, even though the § 924(c) amendment is not retroactive, compassionate release may be granted on this theory even when a related statute forecloses relief on a similar basis. Indeed, the cases cited by Black in discussing nonretroactive sentencing amendments, including McCoy, United States v. Maumau (10th Cir. 2021), United States v. Owens (6th Cir. 2021), United States v. Cooper (5th Cir. 2021), and United States v. Rollins (N.D. Ill. 2021), all agree that such amendments can supply extraordinary and compelling reasons for release. And in stating that courts may consider nonretroactive legislative changes, the Black court noted that § 3582 allows for relief “where extraordinary and compelling reasons justify that relief,” even in the absence of another statute specifically providing for such relief. What’s more, the court recognized that nonretroactive sentencing amendments were “offered as an alternative ground [for release],” separate from the prisoner’s cancer diagnosis. To be sure, the Black court also concluded that the district court erred in failing to consider nonretroactive sentencing amendments in its discussion of the § 3553(a) factors; but Black’s analysis was in no way cabined to § 3553(a).
The procedural posture of Black also indicates that its holding applies to the extraordinary and compelling reasons inquiry, in addition to the § 3553(a) analysis. As explained above, Black moved for compassionate release on the basis of his cancer diagnosis and a nonretroactive sentencing amendment. The district court concluded that Black was ineligible for release because his cancer was not terminal and was therefore not an extraordinary and compelling reason in favor of release. The Seventh Circuit recognized that this conclusion was erroneous after its decision in United States v. Gunn (7th Cir. 2020), which held that district courts were no longer bound by the Policy Statement; thus, Black’s illness need not have been terminal to constitute an extraordinary and compelling reason. The Seventh Circuit opined that “[b]ecause the district court did not consider [the § 924(c)] statutory change, which reflects a substantially different view by Congress about how to punish violations of § 924(c),” the district court had failed to recognize “the full extent of its discretion,” “particularly when this rationale was offered as an alternative ground after the court had erroneously held that Black was not even legally eligible for relief under § 3582(c).” The court recognized, then, that Black identified the nonretroactive sentencing amendment as an alternative basis of relief should his cancer diagnosis have proven insufficient.
In sum, Black stands for the proposition that nonretroactive sentencing amendments can supply extraordinary and compelling reasons when combined with other individualized factors—such as a prisoner’s heightened vulnerability to COVID-19, youth at the time of the offense, or the sheer length of a prisoner’s sentence. The court, quoting McCoy, reiterated that “[n]ot all defendants convicted under § 924(c) should receive new sentences, but courts should be empowered to relieve some defendants of those sentences on a case by case basis.”
Consequently, Thacker’s rationale disregards the legislative history of the compassionate release statute, upends the Seventh Circuit’s compassionate release precedent, and further aggravates a growing circuit split. The Thacker court’s desire to preserve the nonretroactivity of the FSA goes too far and, as a consequence, cements injustice by barring courts from meting out relief when appropriate.
The consequences of categorically barring relief discussed in Part IV are not theoretical. For example, in one pre-Thacker case in the Seventh Circuit, movant Robert Rollins was originally sentenced to a mandatory minimum of 106 years for bank robberies he committed while in his twenties. The conviction was his first offense, but because there were multiple counts of § 924(c) charges, he received what in practice amounted to a life sentence. If sentenced today, Rollins would face a minimum of twenty-eight years. The district court granted compassionate release based on both the sheer length of Rollins’s pre-FSA sentence and his exceptional rehabilitation. The district court noted, “a de facto life sentence far exceeds appropriate punishment. This case epitomizes the unjust, cruel, and even irrational sentences that were sometimes required in multiple-count § 924(c) prosecutions for first-time offenders” (quotation marks and citation omitted).
Rollins would have been consigned to serve the rest of his life in prison if he moved for compassionate release post-Thacker. Because his sentence was lawfully imposed, Thacker and its progeny (such as Ugbah) would bar relief even as to Rollins’s unnecessarily long sentence. Other pre-Thacker cases in the Seventh Circuit illustrate the ways in which Thacker constrains the ability of judges to render fair and just sentencing reductions.
In contrast, the Fourth Circuit’s decision in McCoy has allowed a recalibration of sentences that aligns with notions of fairness. For example, prisoner Paul Kratsas was sentenced in 1993 to a mandatory minimum life sentence for conspiracy to distribute cocaine. The FSA, however, would have set Kratsas’s mandatory minimum at fifteen years. The court noted that the “sentencing judge . . . lamented his duty to impose the mandatory life sentence and stated that . . . he would [have] impose[d] a sentence of 360 months” if he was able. The court applied the Fourth Circuit’s case-by-case approach and granted compassionate relief based on the unique factors presented by Kratsas.
Allowing nonretroactive sentencing amendments to supply extraordinary and compelling reasons is generally administrable and does not open the floodgates. For one, even when courts allow such amendments to be considered in the extraordinary and compelling reasons analysis, district judges must consider the amendments in conjunction with a prisoner’s individualized circumstances. The mere fact of a nonretroactive sentencing amendment is not, on its own, sufficient to justify relief. The district court in Rollins, for example, emphasized the “rarity of these circumstances.” Moreover, compassionate release is also limited by the § 3553(a) factors. Even if a prisoner can show the presence of extraordinary and compelling circumstances, he or she still must demonstrate that compassionate release would not, inter alia, undermine general or specific deterrence, pose a danger to the community, or fail to reflect the seriousness of the crimes. In this way, compassionate release based on nonretroactive amendments will not result in a deluge of releases and sentencing reductions. Indeed, several other cases in the Fourth and Tenth Circuits demonstrate the administrability of this approach, authorizing compassionate release in certain nonretroactivity cases when individualized extraordinary and compelling reasons so demand without opening the floodgates.
The Seventh Circuit should harmonize its approach with its past precedent and the legislative history of compassionate release by clarifying that nonretroactive sentencing amendments may constitute, in addition to other individualized factors, extraordinary and compelling reasons favoring release. Permitting case-by-case assessment of whether a nonretroactive sentencing amendment renders the existing sentence excessively lengthy or creates an egregious sentencing disparity gives purpose to compassionate release without supplanting Congress’s preclusion of automatically retroactive relief.
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Jaden Lessnick is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He is especially grateful for the insight of Professor Erica Zunkel, whose support and compassionate release expertise were invaluable in drafting this Case Note. He also thanks Professors Alison Siegler and Judith Miller, Reagan Kapp, Matthew Makowski, Benjamin Klein, and the University of Chicago Law Review Online team.