Alito and colleagues challenge compassionate release

 Madiba K. Dennie writing for Balls & Strikes:

 Last week, the U.S. Supreme Court heard oral argument in three cases about the conditions under which federal judges can reduce a prison sentence. As a general rule, judges may not modify a term of imprisonment once it’s been imposed. But four decades ago, Congress enacted a statutory exception for compassionate release, empowering judges to shorten a prison term if “extraordinary and compelling reasons” warrant relief.

Congress did not, however, give much guidance as to what a compelling reason actually is, beyond specifying that rehabilitation alone is insufficient, and that any sentence reduction must be “consistent with applicable policy statements issued by the Sentencing Commission.” Identifying qualifying circumstances is thus up to individual judges evaluating requests for release—and, of course, a matter of some debate

In the first case the Court heard, Fernandez v. United States, a district court judge reduced a sentence because he doubted the reliability of the evidence, and had concerns about a significant sentencing disparity between Fernandez and one of his co-defendants. A federal appeals court then held that the district court judge had abused his discretion because he should not have considered Fernandez’s potential innocence—something neither Congress nor the Sentencing Commission ever said.

In the other two cases, Rutherford v. United States and Carter v. United States, judges said they could not consider the fact that the defendants asking for a sentence reduction would have received significantly shorter prison terms had they been convicted after Congress enacted the First Step Act of 2018, a bipartisan criminal justice reform law. But this, too, is not so simple: The Sentencing Commission has explicitly said judges can consider factors like this under certain circumstances.

The uninspiring success rate of the defendants in these three cases—zero for three—doesn’t support an inference that judges are especially inclined to find “extraordinary and compelling reasons” to reduce a prison sentence. Yet Justice Samuel Alito spent Wednesday morning defending the sanctity of mandatory minimum sentences, deeply disturbed by the notion that judges could be letting people out of prison for little reason other than their personal belief that prison is bad. 

“There are a lot of district judges and other federal judges who don’t like mandatory minimums,” Alito said to Fernandez’s counsel. “Could a district judge say, ‘You know what, that mandatory minimum is too much under the circumstances of this case, so I’m going to grant a sentence reduction?’” he asked. 

Alito pressed Rutherford’s counsel, David Frederick, on this same issue. “Is it a permissible factor for a judge to include in the determination a disapproval of the mandatory minimum?” Alito asked. Frederick politely responded with the answer the statute already provides: that a judge would be abusing their discretion if they just didn’t like mandatory minimums, but would be within their discretion if they thought departing from a mandatory minimum was justified by the circumstances of the particular case. Alito was unsatisfied. “I don’t quite see the difference between those two things,” he said.

To illustrate the difference, Frederick offered a hypothetical, imagining a 75-year-old with a life-threatening disease in a prison without adequate medical facilities. “It is not an abuse of discretion for the court to say that, in this particular circumstance, that mandatory minimum is too harsh,” said Frederick. At this, Chief Justice John Roberts interrupted. “Well, you really shouldn’t call it a mandatory minimum then,” said Roberts. “You probably should call it something like the presumptive minimum depending upon subsequent developments.”

Alito later moved to Carter’s counsel, David O’Neill, who also affirmed that district courts could not reduce sentences solely because they disagree with mandatory minimums as a matter of principle. When Alito asked if any provision of the statute “specifically” states that, Carter, too, explained that any categorical approach would be at odds with a statute that’s “all about the individual circumstances.”

If Alito really wants to be angry about the criminal legal system, there are countless real problems he can choose from. His choice to fixate on hypothetical judges with vendettas against mandatory minimums instead is an illustrative example of the conservative conception of criminal law. In Alito’s view, the criminal legal system already does what it is supposed to do: inflict maximum punishment. Any attempts to reform that system are inherently illegitimate.

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