A lower court judge may not have realized that his discretion to grant early release to a federal inmate extended beyond the government’s sentencing guidelines, said the Denver-based appeals court on Wednesday. As a result, the judge must take another look at the inmate’s change in family circumstances.

In reaching its decision, a three-judge panel on the U.S. Court of Appeals for the 10th Circuit noted the U.S. Sentencing Commission has not updated its guidance for prisoner compassionate releases since the recent enactment of criminal justice reform legislation. Because the law now affords judges a greater role in sentence reductions, they are not strictly bound by those guidelines in their decisions.

“I think it will have the effect that the legislature intended, which is an increase in power to grant compassionate release to individual for a variety of reasons, so long as they can be articulated as extraordinary and compelling,” said Susan Champion, deputy executive director of the Three Strikes Project at Stanford Law School.

The First Step Act, which Congress passed at the end of 2018, expanded the ability of prisoners to seek sentence reductions in the form of compassionate release. The law established a relief mechanism through the courts if the Bureau of Prisons failed to act on the release request after 30 days.

During the COVID-19 pandemic, there has been an increase in compassionate release requests for those who are incarcerated and worried about their health. However, the Bureau of Prisons denied or ignored 98% of prisoner requests, The Marshall Project discovered.

The law and sentencing guidelines, which predate the pandemic, require an inmate to be elderly, have served at least 75% of their sentence, or have “extraordinary and compelling reasons” to receive a sentence reduction.

A Colorado Politics analysis of compassionate release motions referencing COVID-19 found that from March through December 2020, federal judges in Colorado granted eight release requests and denied roughly five dozen others. A few inmates submitted more than one motion and some requests were not in the technical form of a compassionate release motion.

In the case of Heather Carr, U.S. District Court Judge William J. Martínez in Colorado denied her request for compassionate release on April 10, 2020. Her attorney, Jason Wesoky, argued to the 10th Circuit that Congress, in passing the First Step Act, had not intended for federal judges to apply the exact same criteria for compassionate release requests that govern the Bureau of Prisons.

“Here, Congress granted the judiciary the great power to expand compassionate release because with lifetime appointment, it allows us to do that which is politically difficult if not impossible: show compassion to criminals,” he told the panel.

Carr is serving a 57-month sentence for using her job as an underwriter to obtain the Social Security numbers of more than 150 inmates, then submitting fraudulent applications for student loans. She and two co-defendants sought $1.3 million from the federal government, and ended up receiving $562,488. She pleaded guilty in 2018 to conspiracy to defraud the government, and prosecutors dismissed 28 other charges.

At the time of her sentencing, the court noted Carr had two young children, including one with special needs. The plan was for Carr’s third adult daughter to care for her siblings.

In 2019, Carr asked the Bureau of Prisons for a compassionate release because of a change in circumstances for the children’s caregiver.

In her motion to the district court judge, Carr described the effects of the pandemic not on herself, but on her daughter, who was reportedly on the medical staff for an Arizona Veterans Affairs hospital. Between the stresses of work, a divorce and the lack of other family support for her younger siblings, the change in circumstances for Carr’s daughter merited early release, she argued.

Martínez indicated that he sympathized, but found such a scenario was not “extraordinary and compelling.” Carr’s daughter was neither deceased nor incapacitated, which the sentencing guidelines provide as reasons for early release.

However, within the past three weeks, appellate judges issued two decisions arising from elsewhere in the six-state region of the 10th Circuit. In both instances, panels determined that judges should use the sentencing guidelines as a “general policy statement,” and not as a literal directive.

Congress, wrote Senior Judge Mary Beck Briscoe in a March 29 opinion, did not “intend for the Sentencing Commission to exclusively define the phrase ‘extraordinary and compelling reasons,’ but rather for the Sentencing Commission to describe those characteristic or significant qualities or features that typically constitute ‘extraordinary and compelling reasons’.”

Champion, of Stanford Law School, represented defendant Malcom Derome McGee in that case. Although other circuit courts of appeals have recently issued similar findings about the advisory nature of the sentencing guidelines, Champion said no one had reached that conclusion at the beginning of McGee’s appeal.

The government argued to the appellate panel in Carr’s case that Martínez knew the sentencing commission guidelines were advisory and had ruled against her anyway.

“It’s not at all clear to me which way the district court was going here,” Judge Carolyn B. McHugh responded during oral arguments. In the panel’s April 14 order, which McHugh authored, the judges declined to say outright whether Carr merited compassionate release under the new understanding of the process. Instead, Martínez will have the opportunity to revisit and clarify his thinking.

Wesoky, Carr’s lawyer, believed the 10th Circuit panel’s decision was correct, but he downplayed expectations of any far-reaching change for inmates.

“Maybe I’m pessimistic, but asking courts and the government to actually be compassionate is a tall order,” he said. In future cases, appellate judges will only look at whether lower courts abused their discretion, meaning “only the most egregious denials of compassionate release will be overturned,” Wesoky added.

Similarly, Christine Scott-Hayward, an associate professor of law, criminology and criminal justice at the California State University-Long Beach, did not believe the 10th Circuit’s directive would have made a significant difference in inmate requests for early release due to COVID-19. In cases she has reviewed, district court judges denied relief due to inmates’ lack of severe, underlying health conditions or the absence of outbreaks in the prison where they resided.

“But I wonder how many rejections were based on the types of non-health related reasons mentioned in this particular case,” Scott-Hayward said.

Given the number of circuit decisions issued on the topic, it does not appear the U.S. Sentencing Commission will soon revise its guidelines for judicial grants of compassionate release — in part because it is unable to.

“The lack of any amendment to [the sentencing guidelines] is not attributable to any dilatoriness by the Sentencing Commission,” McHugh wrote. “The Commission has lacked a four-member quorum to vote on and adopt any amendments since 2019, a deficiency that only the President and Senate can cure.”

The case is United States v. Carr.