First Step Act Sentencing Reforms and Compassionate Release

Statutory Framework: How the First Step Act Rewrote Federal Sentencing

The First Step Act of 2018, Pub. L. No. 115-391, represents the most significant legislative overhaul of federal sentencing since the Sentencing Reform Act of 1984. The statute operates on two parallel tracks: retroactive sentencing reductions for crack cocaine offenses and prospective good-time credit reforms. Each track carries distinct procedural requirements and deadlines that defendants and counsel must navigate precisely.

For crack cocaine offenses, the FSA made retroactive the Fair Sentencing Act of 2010, which raised the threshold quantities triggering mandatory minimum sentences. Previously, 28 grams of crack cocaine triggered a 5-year mandatory minimum, and 280 grams triggered a 10-year minimum. The FSA now requires 280 grams for the 5-year minimum and 840 grams for the 10-year minimum. This retroactivity applies to offenses committed before August 3, 2010, but only if the defendant was sentenced after that date or remains in custody.

Critically, the retroactive provision does not automatically reduce a sentence. The defendant must file a motion under 18 U.S.C. § 3582(c)(1)(B), and the court must conduct a full resentencing analysis. The court must recalculate the advisory guidelines range using the amended drug quantity tables in USSG § 2D1.1, then consider whether a reduced sentence is consistent with the § 3553(a) factors. The court retains discretion to deny the motion if the original sentence would have been the same regardless of the revised thresholds.

Procedurally, the motion must be filed in the original sentencing court. There is no statute of limitations for these motions, but courts have generally required defendants to demonstrate that they have exhausted direct appeals or waived collateral review. The government bears the burden of proving that the defendant is ineligible for relief, but the defendant bears the burden of persuasion on the § 3553(a) factors.

"The First Step Act is not a grant of blanket clemency; it is a carefully calibrated mechanism for sentence adjustment. Defendants must present evidence—not arguments—that a reduced sentence serves the purposes of punishment." — United States v. Boulding, 960 F.3d 774 (6th Cir. 2020)

The earned time credit provision, codified at 18 U.S.C. § 3632, is separate and distinct. Eligible prisoners may earn up to 10 days of credit for every 30 days of successful participation in recidivism-reduction programming, with an additional 5 days per 30 days for those deemed minimum or low risk. However, the credit cannot exceed 15 days per month and cannot reduce the sentence below the statutory mandatory minimum. Ineligible offenses include violent crimes, sex offenses, terrorism, and crimes involving a firearm.

The Bureau of Prisons (BOP) calculates these credits, and disputes regarding computation must first be raised through the BOP's administrative remedy process. The BOP's computation is reviewable under 28 U.S.C. § 2241 in the district court where the prisoner is confined, not the sentencing court. This jurisdictional distinction frequently confuses defendants and can result in dismissal if filed in the wrong venue.

Compassionate Release: The Exhaustion Requirement and the "Extraordinary and Compelling" Standard

Before the FSA, compassionate release under 18 U.S.C. § 3582(c)(1)(A) could only be initiated by the BOP Director, making the provision nearly moribund—fewer than 400 grants per year nationwide. The FSA changed this dynamic by permitting defendants to file directly with the district court. However, the statute imposes a strict administrative exhaustion prerequisite: the defendant must first request release from the BOP warden and either receive a denial, or wait 30 days without a response.

The exhaustion requirement is not jurisdictional but is a mandatory claim-processing rule. Courts have split on whether failure to exhaust requires dismissal or merely a stay pending exhaustion. The majority approach, articulated in United States v. Alam, 960 F.3d 831 (6th Cir. 2020), requires dismissal without prejudice if the defendant files prematurely. Defendants should not attempt to circumvent this requirement, as doing so creates unnecessary delay and can prejudice the eventual motion.

The substantive standard requires "extraordinary and compelling reasons" warranting a sentence reduction, as defined by USSG § 1B1.13. The Sentencing Commission's policy statement identifies four categories: (1) medical conditions—terminal illness or serious conditions impairing self-care; (2) age—at least 65 years old with deteriorating health; (3) family circumstances—death or incapacitation of a caregiver for minor children; and (4) any other reason the court finds compelling. The fourth category has generated significant litigation, particularly regarding COVID-19 exposure and post-conviction rehabilitation.

Post-FSA, courts have held that the policy statement is advisory, not binding. The Supreme Court confirmed in Concepcion v. United States, 597 U.S. 481 (2022), that district courts may consider intervening legal developments and evidence of rehabilitation not previously considered. This holding applies with equal force to compassionate release motions, allowing courts to consider sentencing disparities created by the FSA's non-retroactive provisions.

For medical conditions, the defendant must demonstrate that the condition is not adequately managed by the BOP. The mere existence of a chronic condition, such as hypertension or asthma, is insufficient. The defendant must show that the BOP's medical care is inadequate, that the condition substantially diminishes the ability to function in prison, or that the condition presents an imminent risk of death. Courts have granted release for Stage IV cancer, advanced ALS, and severe cardiovascular disease with documented treatment failures.

• COVID-19 cases: Courts have granted compassionate release where the defendant has a specific medical vulnerability (e.g., diabetes, COPD, immunocompromised status) AND the facility has an uncontrolled outbreak. General fear of infection is insufficient.
• Rehabilitation evidence: Completion of educational programs, vocational training, or parenting classes may constitute "extraordinary and compelling" reasons when combined with other factors, but rehabilitation alone is insufficient.
• Non-retroactive FSA changes: Disparities created by the First Step Act's other reforms—such as the elimination of the "safety valve" enhancement—may support compassionate release when the defendant would have received a shorter sentence under current law.
• Age-related deterioration: Defendants over 65 with documented physical or cognitive decline, particularly those with limited mobility or requiring assistance with activities of daily living, have received favorable rulings.

After finding an extraordinary and compelling reason, the court must consider the § 3553(a) factors: the nature and circumstances of the offense, the history and characteristics of the defendant, the need for just punishment, deterrence, protection of the public, and the need to provide educational or vocational training. The court must also consider the applicable guidelines range and any policy statements. The government's objection to release on public safety grounds carries substantial weight, particularly for violent offenses or crimes involving weapons.

The defendant's post-sentencing conduct is critical to the § 3553(a) analysis. Courts have denied release where the defendant has a documented disciplinary history, including drug use, fighting, or possession of contraband. Conversely, a clean disciplinary record, consistent employment in prison industries, and demonstrated remorse weigh heavily in favor of release. The defendant should prepare a comprehensive packet including disciplinary records, program completion certificates, medical records, and a release plan detailing housing, employment, and family support.

Strategic Considerations for Filing Under Both Provisions

Defendants eligible for both a First Step Act sentence reduction and compassionate release should carefully sequence their filings. A successful § 3582(c)(1)(B) motion reduces the sentence, which may affect the "extraordinary and compelling" analysis for compassionate release. For example, a defendant whose sentence is reduced from 20 years to 15 years may no longer have served a sufficient portion of the sentence to justify release on medical grounds.

The timing of the compassionate release motion is also critical. The 30-day administrative exhaustion period should be initiated immediately upon identifying a qualifying condition. The BOP's failure to respond within 30 days permits filing, but the motion must attach proof of the original request. Defendants should not rely on the BOP's internal grievance procedures beyond the statutory period, as courts have consistently held that the 30-day window is the outer limit.

There is no prohibition on filing both motions simultaneously, but courts may consolidate them for efficiency. The safer approach is to file the FSA motion first, obtain a ruling, and then assess whether compassionate release remains viable. This sequencing avoids the risk of a court denying compassionate release on the grounds that a reduced sentence under the FSA will be imposed, thereby mooting the release request.

Finally, defendants should be aware that a grant of compassionate release is not a pardon. The court may impose conditions of supervised release, restitution, or fines as part of the reduced sentence. The court may also impose a period of home confinement or halfway house placement as an alternative to immediate release. The defendant's release plan should anticipate these possibilities and propose specific conditions that address the court's concerns.

Frequently Asked Questions

Q: Can a defendant file a compassionate release motion directly with the court without first asking the BOP?

A: No. The statute at 18 U.S.C. § 3582(c)(1)(A) requires the defendant to either exhaust all administrative remedies or wait 30 days after submitting a request to the warden. Filing before this period expires will result in dismissal without prejudice. The request to the warden must be in writing and should specifically identify the extraordinary and compelling reasons supporting release. A copy of the request and any BOP response should be attached to any subsequent court filing.

Q: Does the First Step Act's retroactive crack cocaine provision apply to defendants sentenced after a guilty plea?

A: Yes, provided the offense was committed before August 3, 2010, and the sentence was imposed for a crack cocaine offense subject to the Fair Sentencing Act's revised penalties. The plea agreement's sentence does not bar a motion under 18 U.S.C. § 3582(c)(1)(B), but the court will examine whether the agreed-upon sentence reflected the mandatory minimum or was based on the guidelines. If the sentence was based on a binding plea agreement under Rule 11(c)(1)(C), the court may still reduce the sentence if the revised guidelines range falls below the agreed term.

Immediate action is required. The First Step Act's retroactive provisions have no filing deadline, but compassionate release demands prompt action due to the 30-day exhaustion period and the rapidly evolving case law. A defendant who delays risks missing the opportunity to present evidence of rehabilitation or medical deterioration that could support release. Federal criminal defense counsel should be consulted without delay to assess eligibility under both provisions, gather necessary documentation, and file strategically. The difference between continued incarceration and release often rests on the quality and timing of the motion filed.