Saving the People Congress Forgot

Abstract

Lost among more than 150,000 federal prisoners is a small cohort of “old law” people who have served many decades in custody. They were sentenced for offenses committed prior to November 1987, when the Federal Sentencing Guidelines went into effect. These are some of the oldest and most vulnerable people in the federal system, and least likely to re-offend. The possibility of release for most of them lies with the U.S. Parole Commission, a dysfunctional government agency. Unlike other federal prisoners, old law people cannot ask a court for compassionate release. The Commission was scheduled to go out of business in 1992, but instead its role has changed and it has been continually re-authorized, currently through October 2023. But as the article explains, the Commission is a failed agency: it has lost track of old law people and has not reported accurately to Congress. Further, the Agency was created to oversee a vastly different population than the aging and medically vulnerable people under its jurisdiction now. The article recommends amending the First Step Act to allow all old law people to apply for compassionate release under the same procedures available to new law prisoners. Congress should not continue to re-authorize the Parole Commission. Parole authority should be transferred to U.S. magistrate judges, to apply release criteria more suited to an elderly population. Finally, clemency petitions for everyone sentenced under the old law should be prioritized by President Biden.