We Can’t Lose the Promises of the First Step Act
By Shanna Rifkin
In late 2018, a bipartisan Congress passed, and President Donald Trump signed, the First Step Act (FSA), a landmark criminal justice reform bill. The FSA included critical changes to federal compassionate release, a tool that allows courts to free an individual who has “extraordinary and compelling circumstances” (terminal illness, the death of a co-parent, and other similar reasons).
Congress’s goal in changing compassionate release was to expand access to this essential safety valve in the federal system — and for good reason. Before the FSA, the Bureau of Prisons (BOP) was the compassionate release gatekeeper, solely responsible for bringing compassionate release motions to the courts.
Let’s just say that the gate almost always remained closed. The BOP filed only a handful of motions every year. But under the FSA, incarcerated individuals can bypass the BOP and bring their compassionate release motions directly to court.
Compassionate release under the FSA has been successful. A new report from the Sentencing Commission highlights the fact that roughly 25% of incarcerated people who filed a compassionate release motion were granted compassionate release in Fiscal Year 2020. This represents a twelvefold increase from the prior year.
But as use of this tool becomes more widespread, resistance from some government prosecutors becomes more pronounced, threatening to undermine Congress’s intent and leave people without the life raft Congress gave them.
In the past few weeks, through FAMM’s work on the Federal Compassionate Release Clearinghouse, I have worked on or been involved in three cases of individuals who have terminal cancer. These people are quite literally on borrowed time. Given their terminal diagnosis, they also squarely fit within even the narrowest view of who should be granted compassionate release under the Sentencing Guidelines (Section 1B1.13). An individual’s eligibility for compassionate release is not determined by their crime of conviction. The CR safety valve is about elevating the need for compassion over the crime that someone committed.
Even so, in each case, the government prosecutors argued forcefully against the individual’s release. In one case, the prosecutor claimed that terminal cancer does not meet the standard of an extraordinary and compelling reason. In each of the cases, the government asserted that the individual remained a threat to society.
Let that sink in. We are talking about people who are dying. People who can barely get themselves up and dressed in the morning. Yet somehow, they remain a threat to society in the government’s eye.
The real threat is unequivocally not these human beings who simply want to die with dignity at home. The real threat is this alarming prosecutorial trend that subverts congressional intent and keeps families separated from their loved ones in their final days. And for what? To protect the finality of a conviction or plea agreement won years ago?
Compassionate release is a necessary tool. But the behavior by some prosecutors, and even judges, jeopardizes the promise of the FSA. Because if these terminally ill people won’t get compassionate release, who will?
Shanna Rifkin is FAMM’s Deputy General Counsel.
