Discussing Ketanji Brown Jackson’s Supreme Court nomination today, Sen. Charles Grassley (R–Iowa) brought up her resentencing of a heroin dealer named Keith Young—a case that Sen. Tom Cotton (R–Ark.) During her confirmation hearing, she was grilled about it. Grassley and Cotton suggested that Jackson was in violation of federal law, retroactively applying a sentencing overhaul that Congress did not make retroactive. The issue isn’t so simple, as federal appeals courts disagree on Jackson’s reasoning for Young’s shorter sentence.
Jackson was a U.S. District Court judge for the District of Columbia in July 2018. Young had been convicted of possession with intent to distribute 1 kilogram of heroin or more. Jackson sentenced Young to 20 years federal prison. This penalty became mandatory after prosecutors invoked 21 USC 851, which is applicable to certain defendants who have had prior convictions for drug crimes. Young made a request for compassionate release under 18 USC 3582 (c)(1)(A), which permits judges to decrease sentences when there are “extraordinary and compelling” reasons.
Congress passed the FIRST STEP Act in December 2018, five months after Young was sentenced. It included criminal justice reforms. Prisoners could file motions for reductions of sentences directly, after having exhausted all administrative options. Prior to the compassionate release provision, all requests for sentences reductions had to be made through the Bureau of Prisons. Young, as many others who were prisoners during the pandemic filed similar motions. Young argued for his release due to the risk posed COVID-19. He cited his asthma and past smoking habits as reasons he was particularly vulnerable.
Jackson refused to grant that request. However, Jackson reduced Young’s sentence from twenty years to ten. This is the same term Young would have received if he had not been granted the Section 851 amendment. At her confirmation hearing she pointed out that the FIRST STEP Act has tightened requirements for these enhancements, so Young’s prior conviction would have not triggered Section 851. Young was sentenced following the December 21st 2018 law. Although the change did not apply retroactively, it meant Young would have served half his sentence if he was sentencing five months later. Jackson considered this an “extraordinary” and compelling reason to reduce his sentence.
Jackson incorrectly substituted the policy judgment reflected in FIRST STEP Act for Jackson’s, according to Grassley. Jackson claimed that Jackson based her extraordinary judgment on the FIRST STEP Act. [and]”It is compelling” that the law does not retroactively change, he stated today at a Senate Judiciary Committee meeting. It is dangerous and a horrible interpretation. Congress chose…which provisions of the FIRST STEP Act would apply retroactively…The Senate is currently considering legislation that I cosponsored with [Senate Judiciary Committee Chairman Richard Durbin (D–Ill.)]This makes certain provisions of the FIRST STEP Act retroactive. Congress should make the change.
Congress could not decide that some drug offenses were too severe and force current prisoners to keep serving the sentences it considers unfair. It would be absurd. But Congress made that decision and Grassley argues this was because it won approval for the FIRST Step Act. He said that “the compromise I reached with Senator Durbin regarding the FIRST STEP Act would not have been possible” if he believed that an activist judge might insert his own opinions into the law. This decision raises serious issues about separation of power and will complicate bipartisan work in the future.
Grassley observed that neither U.S.’s compassionate release provision or the U.S. The guidelines of the Sentencing Commission mention that nonretroactive penalties changes are an “extraordinary” and compelling reason to reduce a sentence. It’s “a radical situation,” he stated, and it is outside the legal limits.
Several federal appeals courts have ruled that Jackson’s reason for reducing Young’s sentence is not covered by the “extraordinary, compelling reasons” phrase. The 2020 case United States v. McCoyThe U.S. Court of Appeals, 4th Circuit, upheld compassionate release reductions for many defendants who were sentenced under 18 USC924(c). This prescribes a minimum of five years for anybody who possesses a gun “in furtherance of” a drugtrafficking crime, regardless of whether he used it. Each subsequent offense will result in a gun sentence that must be served together with the sentence.
The FIRST STEP act was not yet in effect. First-time drug offenders could get harsh sentences under USC 924(c) if they owned firearms and had been convicted on multiple charges. Weldon Angles (a Utah 24-year old record producer) received a 55-year mandatory sentence in 2004 for three 8-ounce pot sales to government informants. Angelos was freed in 2016, after the prosecution declined to block his request for resentencing. He never threatened anyone or injured anybody with a firearm. The fact that Angelos had one could have led to him being sentenced to life.
These outrageous cases compelled Congress to forbid the “stacking” used against Angelos by prosecutors. According to the FIRST STEP Law, defendants who were convicted for having a gun “in the furtherance” of drug trafficking are exempted from the mandatory minimum 25-year term. This change, however, was not retroactive. For the 4th Circuit, the question was whether this change could still be taken into consideration in the contexts of compassionate release motions. Appeal court affirmed that it was possible.
“Today, the defendants’ sentences would be dramatically shorter—in most cases, by 30 years—than the ones they received,” the court noted. Although the compassionate release clause prohibits sentence reductions against “applicable policy statements made by the Sentencing Commission,” the 4th Circuit noted that this provision did not address the issue of what constitutes “extraordinary and compelling grounds” for filing motions to the FIRST STEP Act. “Nor was it otherwise improper,” the appeals court said, “for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.”
Government argued that non-retroactive reforms were not possible because sentencing committee guidelines before the FIRST STEP Act. These guidelines stated that a reduction in sentence can be justified by a prisoner’s health, age or family situation, as well as “other reasons” the Bureau of Prisons considered “extraordinary, compelling.” However, the prisoners successfully countered that “policy statement.” McCoyThe FIRST STEP Act had clearly replaced it. This was because the Bureau of Prisons couldn’t file a “compassionate-release” motion.
Can the difference between the current and previous penalties be considered an “extraordinary, compelling” reason in the absence of a sentencing committee “applicable statement of policy”? This was the opinion of the 4th Circuit.
“Multiple district courts have concluded that the severity of a § 924(c) sentence, combined with the enormous disparity between that sentence and the sentence a defendant would receive today, can constitute an ‘extraordinary and compelling’ reason for relief under § 3582(c)(1)(A),” the 4th Circuit said. “We find their reasoning persuasive….We think courts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair.”
The U.S. Court of Appeals, 10th Circuit arrived at the same conclusion regarding the 2021 case United States v. MaumauThe same sentence provision applied to both cases. The 2022 case United States v. RuvalcabaThis case involved the mandatory minimum of 25 years for defendants who have been convicted for at least two drug crimes. The 1st Circuit also held that courts “may take into consideration the [FIRST STEP Act’s]To determine if a compassionate release is possible, non-retroactive modifications in sentencing law are determined on an individual basis. They will be based upon the particular facts of each defendant.
In 2020 United States v. BrookerThe U.S. Court of Appeals, 2nd Circuit, agreed that the First Step Act allowed district courts to examine all the compelling and extraordinary reasons an imprisoned person could bring before them when they make compassionate release motions. It pointed out that this provision grants “broad authority” to district courts and noted that they had previously granted relief for “overly long sentences”. “Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984,” the 2nd Circuit said, citing the Senate report on the bill, which said relief might be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence.”
For the case 2021 United States v. AndrewsThe U.S. Court of Appeals, 3rd Circuit, agreed with the commission’s old compassionate release guidance that judges were not to be bound. But it held that neither “the duration of a lawfully imposed sentence” nor “nonretroactive changes to the § 924(c) mandatory minimums” qualify as an “extraordinary and compelling” reason for granting a compassionate release motion.
The 3rd Circuit agreeing with Grassley in this matter, stating that “considering the length a statutorily required sentence as a reason to modify a sentence would infringe Congress’s authority of setting penalties.” And it noted that “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.”
Similar views were held by the 7th Circuit and 6th Circuit. The 8th Circuit this year agreed that “a non-retroactive change in the law…cannot constitute an extraordinary and compelling reason for reducing a sentence.”
Grassley believes that Jackson was in excess of her statutory authority by reducing Keith Young’s sentence. It is not fair to say that Jackson’s views are “radical” and “outside the limits of law,” given the circuit split, and the uncertainty of “extraordinary compelling reasons.”