Justices evaluate limits of the compassionate-release statute

In Fernandez v. United States and Rutherford v. United States, argued on Wednesday, the Supreme Court considered what constitutes permissible grounds for a federal inmate to claim to have “extraordinary and compelling” reasons for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). A majority of the justices appeared skeptical of the defendants’ claims in both cases. 

Fernandez: compassionate release and collateral review

Joe Fernandez participated in shooting to death two men who were seeking to collect a $6.5 million drug debt for 274 kilograms of cocaine. Approximately a decade after he was prosecuted in 2011 and convicted at trial, the district court reduced Fernandez’s mandatory life sentence to time served. The district court did so on the basis of the compassionate-release statute, finding there were “extraordinary and compelling reasons” for this sentence reduction given (1) perceived doubts about the strength of the evidence, in particular the credibility of witnesses who testified against Fernandez; and (2) the lower sentences imposed on Fernandez’s codefendants, who pleaded guilty and cooperated with the government.

Because Fernandez’s request for compassionate release questions the validity of his convictions (raising whether one can do this under the compassionate-release statute), and petitions for a writ of habeas corpus under 28 U.S.C. § 2255 (collateral attacks on a conviction or sentence) are the usual route for federal inmates to bring such challenges after a conviction is final, the oral argument in Fernandez’s case focused on the relationship between compassionate release and habeas review and whether Fernandez’s theory of compassionate release would either lead inmates to skip using habeas petitions or allow inmates to evade established limits on habeas relief. 

Early in the oral argument, Chief Justice John Roberts raised that concern, asking Fernandez’s lawyer, Benjamin Gruenstein, why such attempts to get around Section 2255 would be, as Gruenstein had claimed, “rare and unusual.” Gruenstein proposed that if a defendant was barred from obtaining relief under Section 2255, he would have to adequately justify “the circumstances surrounding” his inability to satisfy Section 2255’s requirements. 

Justice Amy Coney Barrett later followed up by asking whether Gruenstein is asserting that the compassionate-release statute requires a defendant to seek relief under Section 2255 first before seeking compassionate release, at least when a challenge to the validity of the defendant’s conviction or sentence is at stake. Gruenstein said that if a defendant failed to seek relief under Section 2255 first, the defendant’s request for compassionate release “would be weakened by the fact that he did not take the opportunity to enforce his rights” under that statute.

Similar to Barrett, Justice Elena Kagan emphasized the procedural restrictions on Section 2255 relief, asking why compassionate release under Gruenstein’s approach would not “be used essentially as an end-run around those prohibitions?” Gruenstein answered that compassionate release is available to alleviate the denial of relief under Section 2255 procedural rules, like the limitations on multiple Section 2255 motions, when the inmate’s inability to get relief under Section 2255 can be described as “extraordinary and compelling.”

Justice Ketanji Brown Jackson picked up on Gruenstein’s point, suggesting that compassionate release may serve as a safety valve for the limits on habeas relief. Gruenstein agreed and emphasized that compassionate release permits only a sentence reduction and could not vacate the conviction (as is the case with habeas), so granting compassionate release purportedly would not threaten the integrity of the procedural rules limiting habeas relief. 

Kagan again appeared skeptical, however, asking, “the question is safety valve for what? I mean, not every safety valve is a safety valve for everything.” Kagan said that she didn’t see “any evidence that Congress meant” for compassionate release to serve as “a kind of do-over statute.”

Justice Brett Kavanaugh wondered why motions to get around habeas limits would remain rare if the court accepted Fernandez’s argument. “I think they’ll be far more common,” and that there will “be a whole new docket, one imagines,” of “these kinds of motions.”

Justice Neil Gorsuch focused on Fernandez’s argument that he should receive compassionate release because the evidence against him was weak and wondered why a court could grant compassionate release premised on rejecting the jury’s verdict about the strength of the evidence, as occurred in Fernandez’s case. “I thought, in our legal system, the jury’s verdict on the facts is not something a court can impeach unless it’s clearly erroneous.” Gorsuch added that “the appropriate remedy for [the district judge’s] disquiet about a jury verdict is to set it aside” and not simply to reduce the sentence. 

Arguing for the federal government, Deputy Solicitor General Eric Feigin contended that Section 2255 and compassionate release serve different functions. Section 2255 tests the validity of the conviction and sentence, while compassionate release and the broader sentencing statute that includes it presume that the conviction and existing sentence are valid when prescribing how a sentence should be reduced.  

Although Gruenstein attracted favorable questions from Jackson and Justice Sonia Sotomayor, the other justices’ questions suggested that he may have difficulty attracting a majority of the court to support his position.

Rutherford: compassionate release and retroactivity

The second case argued on Wednesday dealt with compassionate release in another sentencing context. Daniel Rutherford and Johnnie Markel Carter were convicted in separate cases of multiple firearm offenses under 18 U.S.C. § 924(c). When they were sentenced in 2006 and 2011, a second Section 924(c) offense carried a consecutive mandatory minimum sentence of 25 years, raising their total sentences by decades. As part of the First Step Act, passed in December 2018, Congress amended Section 924(c) so that the 25-year penalty for a second offense applies only after a defendant has been convicted of an earlier Section 924(c) offense, which Rutherford and Carter had not. 

Nevertheless, Congress specified that this change in penalties applies only to defendants who had not received a sentence under Section 924(c) at the time the First Step Act was enacted. The issue in Rutherford’s and Carter’s cases is thus whether they can invoke Congress’ failure to apply the change in law to them as an “extraordinary and compelling” reason for compassionate release.

Arguing on behalf of Rutherford, David C. Frederick began by emphasizing that the compassionate-release statute gave district courts broad discretion. Justice Clarence Thomas asked Frederick why Congress’ choice not to make the change to second Section 924(c) sentences retroactive did not resolve this case. Frederick answered that Congress in the First Step Act did not eliminate compassionate release as a mechanism for granting reductions on a case-by-case basis when the defendant had an “extraordinary and compelling” reason for compassionate release.  

In probing the limits of Frederick’s position, Sotomayor asked him whether judges could rely solely on “their unhappiness with mandatory minimums to grant compassionate release.” Frederick responded that granting such a reduction would be an abuse of discretion because “the mandatory minimums set forth by statute indicate[] what Congress’ judgment is.”

Given Frederick’s acknowledgment of that limitation on compassionate release, Justice Samuel Alito followed up by asking whether a court could consider disagreement with the mandatory minimum as a factor in granting a reduction. Frederick responded that a district court could consider, together with other factors, that “this mandatory minimum is too harsh.” Thus, according to Frederick, a court could effectively grant compassionate release in cases in which Congress foreclosed retroactive relief to the changes in second Section 924(c) sentences, as long as the disagreement with the mandatory minimum was just a factor in finding an “extraordinary and compelling” reason for compassionate release.

Roberts observed that, under such an approach, “you really shouldn’t call it a mandatory minimum then. You probably should call it something like the presumptive minimum depending upon subsequent developments.” Frederick responded, “Well, it’s not for me to offer up words to Congress that Congress wrote in its statutes” and went on to stress that compassionate release would be rare given the circumstances at issue. 

During the argument of David O’Neil, Carter’s attorney, Gorsuch asked whether the difference in how the First Step Act handled a change in penalties for crack cocaine offenses, which it made clear was retroactive, and the change in sentences for second Section 924(c) offenses, which it made clear were only prospective, weighed against Carter’s position. O’Neil responded that what Carter was proposing was not full retroactivity for the change to Section 924(c) sentences but instead a case-by-case opportunity for a sentence reduction through compassionate release, which could include such factors as an intervening change in the law.

Feigin, arguing once again for the government, contended that compassionate release could not override the retroactivity determination that Congress made. When Jackson pressed him about why compassionate release would be unavailable to defendants like Rutherford and Carter when the change in law was merely a factor that the court considered in granting compassionate release, Feigin responded that the compassionate-release statute’s standard is “not phrased as a totality of the circumstances as such,” and that a nonretroactive change in law is not something that “can contribute to” establishing an “extraordinary and compelling reason” for compassionate release.

As in Fernandez, the tenor of the justices’ questions left the impression that the defendants would have difficulty reaching a majority to support their positions.