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Abstract

In early 2023, the United States Sentencing Commission promulgated a compassionate release policy statement that will reverberate throughout the federal sentencing system for decades to come. In resolving an issue that had sharply divided the circuits, the Commission determined that certain nonretroactive changes in sentencing law could constitute “extraordinary and compelling reasons” for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). For the hundreds of people serving astronomical sentences that could not be imposed after the First Step Act of 2018, this amended policy statement holds much promise. Under Chevron and its progeny, the Commission’s policy statement should supersede prior, conflicting judicial interpretations of the compassionate release statute that had foreclosed a consideration of nonretroactive changes in the law. But the recent demise of Chevron deference in Loper Bright Enterprises v. Raimondo threatens to revive the circuit split, foreclosing relief in circuits with restrictive interpretations of § 3582(c)(1)(A).

This Article charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron. By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Article shows why the policy statement binds federal courts even in the absence of Chevron deference. On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement. Following Loper Bright, courts remain duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

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