A New Way to Avoid Mandatory Minimum Sentences

Criminal cases in federal court are driven by mandatory minimum sentences. Drugs, guns, child pornography and sex trafficking (among others) all carry mandatory minimum sentences which used to mean that, if the government has the evidence and won’t let you plead to a lesser crime, you do the time. That just might have changed today with the advent of United States v. Zullo, an important decision handed down today by the Second Circuit Court of Appeals.

Zullo concerns “compassionate release,” an old doctrine that has been brought back to life by, ironically, the COVID-19 pandemic that has been surging through the federal prisons (124 inmates dead, and counting). Compassionate release is the idea that when there are “extraordinary and compelling” reasons, judges should be allowed to release inmates before their sentences are over. Until 2018, compassionate release could only be sought by the Bureau of Prisons itself–judges could not act unless they were, in effect, asked to by the government that locked up the defendant in the first place. It pretty much never happened.

That changed in late 2018, when 18 U.S.C. 3582(c) was amended to permit compassionate release based on a defendant’s own motion 30 days after requesting the warden to file for him. Since COVID started, judges have been releasing many more inmates, most of them sick or elderly. Many sick and elderly people were released even before their mandatory minimum terms expired. Early releases are allowed so long as the judge finds that “extraordinary and compelling reasons” exist and the release is consistent with the objectives of federal sentencing, which are set forth in the Sentencing Reform Act, 18 U.S.C. 3553.

But what if the inmate is not sick? The Zullo case raises the question of how far the compassionate release doctrine goes. The government argued that compassionate release was limited by pronouncements in the U.S. Sentencing Guidelines. In the Zullo case, the defendant, who was 17 when he joined a gun-and-drug conspiracy and had demonstrated his rehabilitation, was sentenced to 15 years in prison based on a mandatory minimum that even the sentencing judge believed was too long. But the judge could do nothing about it at the time, because once you plead guilty to a mandatory minimum you are stuck with it, even if the judge thinks the sentence is unfair. But the Second Circuit Court of Appeals made clear in Zullo that the sentence may be reduced based on “the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.” In this case, locking up a boy too young to drink for 3/4 of his life was grossly unfair. That’s extraordinary and compelling. The court’s decision today provides him, and others facing unfair mandatory minimum sentences, a new hope for correcting these routine injustices.

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