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Federal Sentencing Alliance Letter to Congress RE: S. 312 HR 3669 COVID-19 Safer Detention Act 2021

Updated: Aug 14, 2021

Federal Sentencing Alliance sent a letter of support to Senator Dick Durbin and Representative Jerry Nadler on August 11, 2021 praising their efforts regarding this important legislation aimed at furthering First Step Act of 2018 and Second Chance Act of 2018 implementation, expanding inmate standing to complain, and expanding District Court jurisdiction and authorities. The text of the letter sent is cited in full below.

Here is the text of the letter, which also suggests an additional supplement to these Bills for consideration, relative to giving District Courts authority to determine exactly WHAT grounds constituted "other reasons" as extraordinary and compelling reasons warranting compassionate release to home confinement. Federal Sentencing Alliance has suggested that the Congress consider granting District Courts authority to decide on a case-by-case basis, whether an inmate has stated sufficient "other reasons" for compassionate release, not delineated by the United States Sentencing Commission Policy Statements, per se. Although the above Bills, as written, make COVID-19 an extraordinary and compelling ground for compassionate release, they stop short of granting authority and jurisdiction to District Courts to consider other reasons stated separately or in combination thereto. Its time that was changed.

At present 18 U.S.C. § 3582(c)(1)(A)(i), as interpreted considering U.S.S.G. § 1B1.13 (Application Notes)(including “(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C). Id.)

These are the Links to the COVID-19 Safer Detention Act of 2021, S. 312 Sponsored by Senator Dick Durbin, (D-IL) in the U.S. Senate, and the identical Bill in the U.S. House, H.R. 3669, as Sponsored by Jerry Nadler, (D-NY). These Bills are gaining momentum and support.


Here is the text of that Federal Sentencing Alliance Letter to Congress:

Federal Sentencing Alliance 2200 NW Corporate Blvd., Suite 404, Boca Raton, FL 33431 561-717-3000

August 11, 2021

Senator Dick Durbin

711 Hart Senate Building

Washington, D.C.

Representative Jerry Nadler

2132 Rayburn HOB

Washington, DC 20515

RE: S. 312 COVID-19 Safer Detention Act of 2021

H.R. 3669 COVID-19 Safer Detention Act of 2021

Dear Senator Durbin and Representative Nadler:

We are following your progress on S. 312 and H.R. 3669 (both identical Bills) regarding several enhancements to the Second Chance Act of 2018 (Pilot Program, 34 U.S.C. § 60541(g)) and Compassionate Release Program, 18 U.S.C. § 3582(c)(1)(A)(i), regarding the declaration of COVID-19 as an extraordinary and compelling reason for compassionate release for qualifying inmates. Thank you for your efforts in drafting this important legislation.

We view the COVID-19 Safer Detention Act of 2021 (“Act”), as creating qualifying inmate’s rights, and standing, while expanding District Court jurisdiction and transparency, related to those matters addressed in this legislation, including:

1. Substantial amendment to the Second Chance Act of 2018, 34 U.S.C. § 60541(g), the 'Pilot Program' for elderly or terminally ill offenders seeking immediate transfer to home detention once incarcerated. The Act: A.) Provides authority for eligible elderly or terminally ill inmates to immediately request transfer to home detention; B.) Provides standing to inmates to request District Court review after Bureau of Prisons (“BOP”) Administrative Appeals Processes are exhausted, which could be as early as the 31st day after the filing of an official Request with a BOP Warden, with no timely Response received by the inmate; C.) Provides District Court authority and jurisdiction to reduce an original custodial sentence imposed, and to substitute supervised release, with a condition of home detention for the remaining sentence, after considering 18 U.S.C. § 3553(a) factors; and D.) Provides an inmate the right to appointment of counsel by the District Court.

2. Makes COVID-19 an automatic extraordinary and compelling reason for compassionate release, standing alone, for anyone who qualifies as 'high risk' under CDC Guidelines, e.g. those over 60 years of age, or younger, with underlying severe pre-existing medical conditions.

We are taking this opportunity to point out one more specific 18 U.S.C. § 3582(c)(1)(A)(i) shortfall, weakness, and recommended amendment and request that you consider incorporating the changes cited below (bold text) into S. 312 and H.R. 3669 now. The recommended amendment below fits squarely within the spirit of the First Step Act, S. 312 and H.R. 3669. We hope you agree.

It is recommended that 18 U.S.C.§ 3582(c)(1)(A)(i) be amended by adding bold text, in the middle of the code text that presently appears:

(i) extraordinary and compelling reasons, as determined by the policy statements of the United States Sentencing Commission, or other reasons that the court finds to be extraordinary and compelling reasons in defendant's case,warrant such a reduction; or

During Covid-19, ninety-four United States District Courts struggled with the issue of whether the Courts had jurisdiction and authority to Grant motions for compassionate release based upon “other reasons” referenced in the United States Sentencing Commission Policy Statement §1B1.13, related solely to motions filed by the Bureau Of Prisons Director. Because U.S.S.G. §1B1.13 was written some 2 months prior to passage of the First Step Act of 2018, it created a split between U.S. Districts whether “other reasons” for compassionate release could be filed by inmates directly. The underlying concern was whether these Courts had actual authority and jurisdiction to Grant Petitions filed by inmates citing “other reasons”, or not. Even today, the District Courts are split whether such subject matter jurisdiction exists.

In the spirit of the First Step Act of 2018, District Court Judges should have this authority, that will automatically create the concomitant jurisdiction necessary to consider “other reasons” constituting extraordinary and compelling grounds for compassionate release, on a case by case basis. There is no one better to make that factual determination other than a District Court Judge considering specific facts in the unique case before them.

District Court's need actual congressional authority to be able to find other reasons particular to any given case rising to the level of extraordinary and compelling reasons for compassionate release, regardless of whether those reasons are stated in a United States Sentencing Commission Policy Statement. This is especially true, considering the 3 year void created by the lack of a United States Sentencing Commission (“U.S.S.C.”) quorum issuing guidance pertinent to First Step Act of 2018 provisions. At present, the earliest that such guidance could be forthcoming from the U.S.S.C. is November, 2022. More importantly, that one amendment would simultaneously create a much needed Emergency Jurisdiction for District Court Judges that simply does not exist at this time.

It is time that 18 U.S.C.§ 3582(c)(1)(A)(i) be amended to grant District Court's authority to determine exactly what grounds constitute extraordinary and compelling reasons for compassionate release, in their own courtrooms, and on a case-by-case basis. The majority of United States Circuits and District Courts would welcome that particular authority from Congress.

The amendment recommended is the right thing to do. Please consider adding it into S. 312 and H.R. 3669 right now.

We have logged thousands of hours researching national District Court opinions on this particular subject, and clearly see the need for the amendments you have proposed and the one we have proposed above. The fact that U.S. Districts are split on this issue has resulted in disparate treatment of inmates filing identical motions from different Districts. That outcome should not be permitted to continue, as it is counterproductive to the spirit of the First Step Act of 2018 and the Second Chance Act of 2018.

We would welcome an opportunity to meet with you briefly in Washington, D.C. to discuss these matters in greater detail, and provide you with any further documentation that we possess supporting the need for the one supplement to S. 312 and H.R. 3669 recommended. We look forward to hearing from you in the immediate future.

Thank you for your time and timely consideration of these very important matters.



For further updates regarding S. 312 and HR 3669, including progress of these identical Bills, please visit Federal Sentencing Alliance LinkedIn page. We view these Bills as bipartisan legislation, and are hopeful that some version of these Bills should pass.

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