A recent U.S. Sentencing Commission policy that allows judges to order the early release of some prisoners went beyond a law passed by Congress, a federal appeals court has ruled.
In the First Step Act, which former President Donald Trump signed into law in 2018, Congress enabled prisoners to petition for early release based on extraordinary and compelling reasons. In 2023, the Sentencing Commission narrowly approved a policy change allowing judges to consider a change in law when determining whether to grant petitions for early release.
Daniel Rutherford, who was convicted of two armed robberies in 2003 and sentenced to 42 years and five months, asked a judge to reduce his sentence, arguing that changes in the law would make his sentence at least 18 years shorter if he were sentenced today.
A federal judge in 2023 rejected the petition, noting that Congress said the First Step Act provision in question did not apply retroactively. A U.S. Court of Appeals for the Third Circuit on Nov. 1 agreed, finding the commission’s policy change contradicted Congress.
He was joined by U.S. Circuit Judge D. Brooks Smith and U.S. District Judge Renée Marie Bumb.
The Sentencing Commission and a lawyer representing Rutherford did not respond to requests for comment.
The decision was made in favor of the Department of Justice, whose lawyers argued in court filings that the First Step Act “does not authorize sentence reductions based on nonretroactive changes in sentencing law.”
Changes in statutes do not meet the criteria of extraordinary, the lawyers said.
A previous law allowed judges to reduce the sentences of prisoners if “extraordinary and compelling reasons warrant such a reduction.” The Sentencing Commission defined the reasons as including specific medical conditions and other criteria.
The First Step Act amended the law. It allowed prisoners, not just the Bureau of Prisons, to petition for early release.
The commission lacked a quorum to issue a policy statement after the First Step Act was signed until 2023, when, in a 4–3 vote, it approved an update.
The update said judges could consider nonretroactive changes in law as extraordinary and compelling in cases involving defendants who received “an unusually long sentence” and had served at least 10 years in prison, if changes in the law “would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.”
In a dissenting statement, the three members who voted against the updated policy said it made “a seismic structural change to our criminal justice system without congressional authorization or directive” and raised concerns over the separation of powers.
The appeals court said the First Step Act was clear on the matter.
“When it comes to the modification of § 924(c), Congress has already taken retroactivity off the table, so we cannot rightly consider it,” Jordan wrote for the panel.
The ruling does not directly apply to the Sentencing Commission because the agency is outside of the executive branch. Jordan said the rationale in the ruling “is still instructive as we assess the assertion that the Commission’s view of a statute should trump our own.”
