Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction
In this post last month, I lamented the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction." In that post, I noted that nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors. As I see it, the majority in Jarvis was eager to create an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences because, presumably based on its own sense of sound policy, it wanted to cabin the new sentencing discretion created by the FIRST STEP Act.
Against that backdrop, I was pleased to learn of a new amicus brief filed in support of rehearing en banc in Jarvis that makes a series of forceful arguments that wisely lean heavily on textualism. The brief is filed on behalf of the American Conservative Union Foundation Nolan Center for Justice and Shon Hopwood, and I recommend the entire filing (which can be downloaded below). Here are a few excerpts emphasizing the statutory text:
Until and unless the Sentencing Commission promulgates a new policy statement clarifying what factors district courts may consider in deciding motions for compassionate-release sentence reductions, this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text. To do otherwise is to substitute this Court’s judgment for Congress’s. Because a district court’s consideration of nonretroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)....
The Sentencing Commission is empowered to promulgate a new policy statement that expressly permits district courts to consider nonretroactive sentencing-law reforms, combined with other factors, in determining whether a defendant has presented extraordinary and compelling reasons. That the Commission presently lacks a quorum is irrelevant to interpretation of the underlying statutes. Since the Commission can promulgate a policy statement permitting consideration of nonretroactive sentencing reforms, district courts may certainly consider such criteria now in the absence of a new and applicable policy statement.
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