Introduction

There exists in our law a principled mechanism for imbuing the federal sentencing system with needed post-sentencing flexibility: 18 U.S.C. § 3582(c)(1)(A). This process is colloquially known as “compassionate release,” but “compassionate release” is a misnomer; compassion is not the standard, and release is not the most probable outcome. The statute instead “speaks of sentence reductions.” 1Open this footnote Close this footnote 1 United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020) (Calabresi, J.). …Open this footnote Close Section 3582(c)(1)(A) allows courts to reduce a previously imposed sentence upon motion by the prisoner if: (a) the movant has identified “extraordinary and compelling” reasons for a sentence reduction; (b) a sentence-reduction comports with the Section 3553(a) sentencing factors; and (c) a reduction is consistent with applicable policy statements promulgated by the U.S. Sentencing Commission. 2Open this footnote Close this footnote 2 See 18 U.S.C. § 3582(c)(1)(A). …Open this footnote Close As Congress put it, Section 3582(c)(1)(A) is a “safety valve” that allows prisoners to obtain judicial review of a sentence in light of changed circumstances. 3Open this footnote Close this footnote 3 .S. Rep. No. 98-225, at 121 (1983). …Open this footnote Close

The compassionate release misnomer is easy to understand: Perhaps the most salient group of beneficiaries is comprised of prisoners with terminal illnesses. 4Open this footnote Close this footnote 4 See, e.g., U.S. Sent’g Guidelines Manual § 1B1.13(b)(1)(A) (U.S. Sent’g Comm’n 2023). …Open this footnote Close Viewed abstractly, Section 3582(c)(1)(A) might look like a “mercy” statute—and indeed, a sentence reduction is merciful in nature. But the sentence-reduction process is far more stringent and complex than a simple judicial exercise of compassion. Comprehending the analytical difference between the sentence-reduction statute and “compassionate release” is more than a mere academic exercise. The conflation of these two distinct concepts has inadvertently led to criticisms of Section 3582(c)(1)(A) that seem forceful on first glance but fail to withstand more searching review.

This piece addresses one of those misadventures. In a recent essay, Ohio Attorney General Dave Yost and former Ohio Solicitor General Benjamin Flowers argue that Section 3582(c)(1)(A) is constitutionally preempted by the President’s pardon power. 5Open this footnote Close this footnote 5 See generally Dave Yost & Benjamin M. Flowers, The First Step Act and the Pardon Power, Harv. J.L. & Pub. Pol’y Per Curiam, Fall 2023, at 1. …Open this footnote Close In their view, the sentence-reduction statute violates two structural principles of the Constitution: the separation of powers and the unitary executive theory. As Yost and Flowers tell it, the statute “took from the President, and gave to the courts, the constitutionally assigned responsibility over issuing and denying commutations.” 6Open this footnote Close this footnote 6 Id. at 1. …Open this footnote Close In so doing, the authors continue, Congress has arrogated to itself and the courts a freestanding compassion power reserved for the President alone.

Although appealing in its simplicity, the authors’ bottom line is dead wrong. This Essay responds with three principal objections. First, the sentence-reduction statute falls comfortably within Congress’s broad authority over federal criminal law—a discussion Yost and Flowers conspicuously side-step in its entirety. Second, the commitment of the pardon power to the President does not constitutionally foreclose an otherwise valid exercise of Congress’s authority over the federal criminal system. And third, Yost and Flowers misapprehend the substance and scope of the sentence-reduction statute by treating it as a “mercy” power that is complete in itself. Properly understanding both the constitutional principles at play and the nature of the sentence-reduction statute leads to an inexorable conclusion: The pardon power does not constitutionally preempt Section 3582(c)(1)(A).

I. Congress and the Federal Criminal System

In an essay about Congress’s constitutional authority to permit ex-post sentence modifications, it would be wise to start with a discussion of the source and scope of Congress’s power to regulate federal criminal sentencing. It might be especially prudent to do so before declaring that Section 3582(c)(1)(A) “empower[s] the judiciary to exercise a power that the Constitution gives to the President alone.” 7Open this footnote Close this footnote 7 Id. at 2. …Open this footnote Close

Start with the text of Article I. The Constitution enumerates just three offenses that unambiguously fall within the purview of Congress’s criminal power. Congress may “provide for the Punishment of counterfeiting the Securities and current Coin of the United States”; 8Open this footnote Close this footnote 8 U.S. Const. art. I, § 8, cl. 6. …Open this footnote Close “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”; 9Open this footnote Close this footnote 9 Id. art. I, § 8, cl. 10. …Open this footnote Close and “declare the Punishment of Treason.” 10Open this footnote Close this footnote 10 Id. art. III, § 3, cl. 2. …Open this footnote Close The Framers might have understood the enumerated offenses to constitute the whole of Congress’s power over criminal law. 11Open this footnote Close this footnote 11 See Jay S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 Geo. Wash. L. Rev. 1, 27-28 (1997). …Open this footnote Close

Of course, that does not describe the trajectory of early American law. The view that eventually took hold “admitted the exclusivity of the three crimes enumerated in the Constitution, but denied that these were the sum total of Congress’s power to define crimes.” 12Open this footnote Close this footnote 12 Id. at 28-29. …Open this footnote Close Instead, the Necessary and Proper Clause formed, and still forms, the touchstone of Congress’s regulatory authority over the federal criminal system. 13Open this footnote Close this footnote 13 See U.S. Const. art. I, § 8, cl. 18; J. Richard Broughton, Congressional Inquiry and the Federal Criminal Law, 46 U. Rich. L. Rev. 457, 470 (2012). …Open this footnote Close As the Court put it in M’Culloch v. Maryland, 14Open this footnote Close this footnote 14 17 U.S. (4 Wheat.) 316 (1819). …Open this footnote Close “All admit, that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress.” 15Open this footnote Close this footnote 15 Id. at 416; accord United States v. Comstock, 560 U.S. 126, 135-36 (2010). …Open this footnote Close This power is capacious. The Necessary and Proper Clause allows legislation that is “convenient, or useful” or “conducive to [the] beneficial exercise” of Congress’s legitimate aims. 16Open this footnote Close this footnote 16 M’Culloch, 17 U.S. at 413, 418. …Open this footnote Close Congress has marshalled this authority to enact broad statutes that criminalize a wide range of behavior. At present, Congress has defined about 4,450 federal crimes, and federal incarceration rates have skyrocketed in recent years. 17Open this footnote Close this footnote 17 See J. Richard Broughton, Congressional Inquiry and the Federal Criminal Law, 46 U. Rich. L. Rev. 457, 459-60 (2012). …Open this footnote Close

Commensurate with the increasing federalization of crime, the Court has blessed Congress’s broad post-sentencing power. Congress may, for example, administer “systems of parole and supervised release.” 18Open this footnote Close this footnote 18 United States v. Kebodeaux, 570 U.S. 387, 394-95 (2013). …Open this footnote Close Or it may “provide prisoners with medical care and educational training.” 19Open this footnote Close this footnote 19 Id. …Open this footnote Close Or it may “confine th[e] prisoner civilly after the expiration of his or her term of imprisonment.” 20Open this footnote Close this footnote 20 Id. …Open this footnote Close The law is replete with other examples of Congress allowing post-sentencing reductions in a person’s term of imprisonment. Federal Rule of Criminal Procedure 35(b), for instance, allows a “court [to] reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” 21Open this footnote Close this footnote 21 .Fed. R. Crim. P. 35(b)(1); see also United States v. Addonizio, 442 U.S. 178, 189 (1979) (discussing Rule 35(b)). …Open this footnote Close Federal habeas, too, authorizes relief when a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 22Open this footnote Close this footnote 22 28 U.S.C. § 2241(c)(3). Judicial review of criminal convictions does not follow from the Suspension Clause. See Brief for Jonathan F. Mitchell and Adam K. Mortara as Amici Curiae in Support of Neither Party at 4, Edwards v. Vannoy, 141 S. Ct. 1547 (2021) (No. 19-5807) (July 21, 2020) (“In a discussion about habeas corpus, nothing is more disqualifying than the belief that the Suspension Clause has anything to do with prisoners who have already been convicted by a court of competent jurisdiction.”). …Open this footnote Close

Congress’s settled authority over the post-sentencing system is hardly surprising. Congress could have chosen not to criminalize conduct beyond counterfeiting, piracy, and treason. 23Open this footnote Close this footnote 23 See Bybee, supra note 11, at 31-32. …Open this footnote Close It could have even declined to prescribe punishments for those three offenses. 24Open this footnote Close this footnote 24 See Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal Jurisdiction, 45 Emory L.J. 1, 28 (1996) (“Had lower federal courts not been authorized, there would have been no need to debate what types of criminal cases should be tried in federal court. Consequently, the concept of federal criminal jurisdiction, exclusive or otherwise, would have been a nullity.”). …Open this footnote Close What of the pardon power then? Yost and Flowers surely don’t think that a decision not to prescribe punishment for those three offenses—which would all but obviate the pardon power entirely—would have been unconstitutional. The point is that Congress has made a different policy decision but one that is no less constitutional. 25Open this footnote Close this footnote 25 See Broughton, supra note 13, at 467-72 ( describing both the growth of federal crimes and the Supreme Court’s permissive interpretation of Congress’s power over federal criminal law). …Open this footnote Close It has chosen to enact overinclusive criminal laws but provide for back-end flexibility when appropriate. It could have chosen to enact underinclusive criminal laws without any back-end flexibility. 26Open this footnote Close this footnote 26 See Shon Hopwood, Second Looks & Second Chances, 41 Cardozo L. Rev. 83, 90-92 (2019). …Open this footnote Close The Constitution does not mandate one system over another, and there is nothing unconstitutional about the choice Congress has made.

The sentence-reduction statute is simply another instantiation of Congress’s power to ensure the criminal system’s responsible administration. Congress may have wanted to avoid the needless expenditure of resources on people for whom incarceration is no longer necessary. It may have wished to bolster respect for the legal system by allowing for post-sentencing review and flexibility. It may have recognized that unnecessarily lengthy periods of incarceration increase crime. Sentence reductions are one way in which Congress has chosen to tailor its criminal regime. That this tailoring occurs at the back end of the system rather than in advance of sentencing does not violate the Constitution. Invalidating the sentence-reduction statute would vitiate the “wisdom and humility” 27Open this footnote Close this footnote 27 Gundy v. United States, 139 S. Ct. 2116, 2130 (2019). …Open this footnote Close of upholding Congress’s determinations about the “necessities of government.” 28Open this footnote Close this footnote 28 Id. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)). …Open this footnote Close

II. Pardons and the Separation of Powers

By now, it should be clear that there is at least a prima facie case for Congress’s power to enact Section 3582(c)(1)(A). Yost and Flowers’ response to the foregoing is a suggestion that the Constitution commits the pardon power to the President alone, so whatever the scope of the Necessary and Proper Clause, it cannot be used to exercise a power vested exclusively in another branch. In so doing, they commit two errors. First, they neglect to state the proper separation-of-powers standard, which tolerates some degree of overlapping responsibilities between branches. Second, they misunderstand the role that the pardon power plays in our constitutional structure. I address each in turn.

A. Separation of Powers

Although the separation of powers generally proscribes one branch from exercising the whole of a power vested exclusively in another, our Constitution tolerates some overlapping responsibility among the branches. James Madison famously framed the separation of powers as follows: “[W]here the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted”; but the separation of powers does “not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” 29Open this footnote Close this footnote 29 .The Federalist No. 47, at 302-03 (James Madison) (Clinton Rossiter ed., 1961); see also Joseph Story, Commentaries on the Constitution of the United States § 525 (Melville M. Bigelow ed., 5th ed. 1905) (repudiating the notion that separation of powers forecloses any degree of overlap in responsibility). …Open this footnote Close The separation of powers therefore contemplates “the constitutionality of a ‘twilight area’ in which the activities of the separate Branches merge,” 30Open this footnote Close this footnote 30 Mistretta, 488 U.S. at 386. …Open this footnote Close and it eschews “a hermetic sealing off of the three branches of Government from one another.” 31Open this footnote Close this footnote 31 Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. …Open this footnote Close As the Court affirmed in Morrison v. Olson, 32Open this footnote Close this footnote 32 487 U.S. 654 (1988). …Open this footnote Close “[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” 33Open this footnote Close this footnote 33 Id. at 694 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). …Open this footnote Close

Today, the separation-of-powers inquiry no longer turns on whether one branch exercises a power that might be described as legislative, judicial, or executive in nature. 34Open this footnote Close this footnote 34 See, e.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2199 (2020) (“Backing away from the reliance . . . on the concepts of ‘quasi-legislative’ and ‘quasi-judicial’ power, we view[] the ultimate question as whether [the action] is of ‘such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.’” (quoting Morrison, 487 U.S. at 691)); Mistretta, 488 U.S. at 372 (“We also have recognized, however, that the separation-of-powers principle . . . do[es] not prevent Congress from obtaining the assistance of its coordinate Branches.”). …Open this footnote Close The Court instead considers two factors: first, whether one branch’s actions aggrandize its power at the expense of another branch, and second, whether one branch’s actions interfere with the constitutional duties of another. 35Open this footnote Close this footnote 35 See Mistretta, 488 U.S. at 382 (“It is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence . . . .”); see also, Nixon v. Adm’r Gen. Servs., 433 U.S. 425, 443 (1977) (“[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.”); Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034-35 (2020) (holding that congressional subpoenas of presidential records unduly aggrandize the legislature’s power at the expense of the executive). …Open this footnote Close If one branch’s actions “pose no danger of either aggrandizement or encroachment,” 36Open this footnote Close this footnote 36 Mistretta, 488 U.S. at 382. …Open this footnote Close they will be upheld unless the Constitution’s text expressly provides otherwise. In Morrison v. Olson, 37Open this footnote Close this footnote 37 487 U.S. 654 (1988). …Open this footnote Close for example, the Court rejected a separation-of-powers challenge to an independent counsel vested with the full investigative and prosecutorial power of the Department of Justice and Attorney General. 38Open this footnote Close this footnote 38 Id. at 662, 696-97. …Open this footnote Close  There was no doubt that the independent counsel—which was not housed in any discrete branch of the government—exercised an important component of the executive power. But the “real question” for the Court’s separation-of-powers analysis was whether the for-cause removal restrictions at issue “impede[d] the President’s ability to perform his constitutional duty.” 39Open this footnote Close this footnote 39 Id. at 691. …Open this footnote Close The Court adopted a functional view of the separation of powers, explaining, “we simply do not see how the President’s need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.” 40Open this footnote Close this footnote 40 Id. at 691-92. …Open this footnote Close

Mistretta v. United States 41Open this footnote Close this footnote 41 488 U.S. 361 (1989). …Open this footnote Close applies these rules to circumstances directly analogous to the sentence-reduction scheme. That case involved a separation-of-powers challenge to the Sentencing Guidelines and the U.S. Sentencing Commission. The Commission is comprised of both judges and non-judges, but it is housed in the judicial branch. 42Open this footnote Close this footnote 42 See id. at 368. …Open this footnote Close The Commission exercises certain rulemaking powers in the promulgation of the Sentencing Guidelines. The Court rejected the separation-of-powers challenge, reiterating that the separation-of-powers test turns on questions of “encroachment and aggrandizement.” 43Open this footnote Close this footnote 43 Id. at 382. …Open this footnote Close Even though Article III limits the judicial power to cases and controversies, the Court expressed that “Congress, in some circumstances, may confer rulemaking authority on the Judicial Branch.” 44Open this footnote Close this footnote 44 Id. at 387. …Open this footnote Close

Consistent with this modern view of the separation of powers, the Court in Mistretta articulated a test that has particular force for our present purposes: “Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary.” 45Open this footnote Close this footnote 45 Id. at 388. …Open this footnote Close Applying this test, the Court found no constitutional defect in the Commission’s promulgation of the Sentencing Guidelines. After all, “the sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch.” 46Open this footnote Close this footnote 46 Id. at 390. …Open this footnote Close The Court was therefore not concerned about improper aggrandizement of the judiciary; “[o]n the contrary, Congress placed the Commission in the Judicial Branch precisely because of the Judiciary’s special knowledge and expertise.” 47Open this footnote Close this footnote 47 Id. at 396. …Open this footnote Close

There are doubtless limits on the authority of one branch to exercise the power committed to another, such as unambiguous constitutional text that forecloses overlapping responsibilities. The Court’s application of the Appointments Clause in Buckley v. Valeo illustrates this principle. At issue in Buckley was the composition of the Federal Election Commission, which consisted of six voting members—only two of whom were appointed by the President. 48Open this footnote Close this footnote 48 See Buckley v. Valeo, 424 U.S. 1, 113 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. …Open this footnote Close Applying the “plain language” 49Open this footnote Close this footnote 49 Id. at 127. …Open this footnote Close of the constitutional text, the Court concluded that this arrangement violated the Appointments Clause. 50Open this footnote Close this footnote 50 Id. at 125-26. …Open this footnote Close The Court began by noting that the commissioners were officers of the United States. 51Open this footnote Close this footnote 51 See id. …Open this footnote Close It continued: “Unless their selection is elsewhere provided for, all Officers of the United States are to be appointed in accordance with the Clause.” 52Open this footnote Close this footnote 52 Id. at 132. …Open this footnote Close Because the appointment of the commissioners was not “otherwise provided for” in the Constitution, the appointment needed to comport with the Appointments Clause.

In sum, the separation-of-powers doctrine turns primarily on whether one branch’s exercise of power unduly aggrandizes its own power or materially interferes with the constitutional duties of another branch. To suppose that the separation of powers requires rigid insularity is an invitation for the very judicial intrusion into the prerogatives of the coordinate branches that Yost and Flowers critique. We may now consider the scope of the pardon power.

B. The Pardon Power

The Constitution confers on the President the “Power to grant Reprieves and Pardons for Offenses against the United States.” 53Open this footnote Close this footnote 53 U.S. Const. art. II, § 2, cl. 1. …Open this footnote Close A president may, “either before attainder, sentence or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty.” 54Open this footnote Close this footnote 54 Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1855). …Open this footnote Close The power does not apply to state convictions nor to cases of impeachment. 55Open this footnote Close this footnote 55 See Michael W. McConnell, The President Who Would Not Be King 264 (Bridget Flannery-McCoy & Alena Chekanov eds., 2020). …Open this footnote Close Beyond those limitations, the President can pardon anyone “for any reason, or for no reason at all.” 56Open this footnote Close this footnote 56 Yost & Flowers, supra note 5, at 4. …Open this footnote Close

To understand why Section 3582(c)(1)(A) does not impair the President’s pardon power, it is helpful to grasp precisely how that power fits within the Constitution’s system of checks and balances. The structural logic of vesting the pardon power in the President was to prevent joint abuses by Congress and the courts. 57Open this footnote Close this footnote 57 See Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1673 (2001) (“The Federalist Papers and other early writings suggest that the Framers intended the pardon power to function as a check on the coordinate branches.”). …Open this footnote Close The Framers “understood the Pardon Power as an essential final check against miscarriages of justice and overly harsh applications of the letter of the law—and . . . as a device for national reconciliation after episodes of political unrest.” 58Open this footnote Close this footnote 58 .McConnell, supra note 55, at 171. …Open this footnote Close As Alexander Hamilton saw it, “[h]umanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions . . . justice would wear a countenance too sanguinary and cruel.” 59Open this footnote Close this footnote 59 .The Federalist No. 74, at 447 (Alexander Hamilton) (Clinton Rossiter ed., 1961). …Open this footnote Close James Iredell similarly noted that “there may be instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise.” 60Open this footnote Close this footnote 60 James Iredell, Address at the North Carolina Ratifying Convention, in 4 The Founders’ Constitution 17 (Philip B. Kurland & Ralph Lerner eds., 1987); see Krent, supra note 57, at 1674 (“The Framers envisaged the pardon power as . . . a critical safeguard against legislative and judicially imposed punishment.”). …Open this footnote Close

The pardon power exists in our constitutional design to provide mitigation when the law admits none. The separation-of-powers doctrine in the pardon context thus operates as an anti-impairment principle. The other branches may not “limit the effect of [the President’s] pardon, nor exclude from its exercise any class of offenders.” 61Open this footnote Close this footnote 61 Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866). …Open this footnote Close Obviating the need to use the pardon power in certain instances—such as if Congress repealed all federal criminal laws—does not violate the Constitution. And for the reasons I explain in the following Part, the purported overlap between the pardon power and the sentence-reduction statute hardly approaches a usurpation of the President’s constitutional prerogatives.

III. Sentence-Reduction Motions

Having established that the Constitution allows some degree of overlapping responsibilities between the branches, we may now consider whether the sentence-reduction statute is simply the pardon power by another name. This Part first addresses Yost and Flowers’ fundamental misunderstanding of the federal sentence-reduction standard. Their imprecision is forgivable, given that their state-law offices do not fashion much occasion for familiarity with the federal sentence-reduction statute, but it is important to correct their conflation of Section 3582(c)(1)(A) with a true compassionate release statute. This Part then shows why Section 3582(c)(1)(A) does not unconstitutionally encroach on the pardon power. It concludes by responding to the authors’ unitary executive theory.

A. The Sentence-Reduction Standard

The authors’ thesis rests on a dubious premise. They suggest that the sentence-reduction statute “empowers courts to reduce an inmate’s sentence as an act of mercy.” 62Open this footnote Close this footnote 62 Yost & Flowers, supra note 5, at 3. …Open this footnote Close Thus, they argue, the sentence-reduction statute is legislatively synonymous with the pardon power. Regrettably, Yost and Flowers conflate Section 3582(c)(1)(A) with a nonexistent “compassionate release” scheme.

But “mercy” will not do the trick; it is neither necessary nor sufficient for a sentence reduction under Section 3582(c)(1)(A). A prisoner must first establish “extraordinary and compelling” reasons for a sentence reduction. 63Open this footnote Close this footnote 63 18 U.S.C. § 3582(c)(1)(A)(i). …Open this footnote Close True, those reasons might have emotional force (such as a terminal illness), but the statutory phrase has a specific meaning that excludes much of what might be considered merciful. For example, a person cannot seek a sentence reduction based solely on the fact that his or her sentence overstates the severity of the criminal offense. 64Open this footnote Close this footnote 64 See United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (rejecting a mandatory minimum sentence-reduction “on the basis that the prescribed sentence . . . rests on a misguided view of the purposes of sentencing”); U.S. Sent’g Guidelines Manual § 1B1.13(c) (U.S. Sent’g Comm’n 2023) (prohibiting sentence reductions based on sentence-related reasons except as specifically enumerated in Section 1B1.13(b)(6)). …Open this footnote Close Most importantly, though, even a person who satisfies the “extraordinary and compelling” circumstances prong is not entitled to a sentence reduction. The person must demonstrate that release is consistent with the Section 3553(a) sentencing factors. 65Open this footnote Close this footnote 65 See 18 U.S.C. § 3553(a). …Open this footnote Close

The upshot is that there inevitably exist countless prisoners who have established extraordinary and compelling reasons for a sentence reduction, but for whom relief under Section 3582(c)(1)(A) is unavailable. The President faces no such limit in mercifully exercising the pardon power and indeed may fully pardon those individuals who have already obtained a sentence reduction. 66Open this footnote Close this footnote 66 See, e.g., Schick v. Reed, 419 U.S. 256, 268 (1974) (affirming President Eisenhower’s commutation of a death sentence to life in prison without parole, but noting that the prisoner may “apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition”). …Open this footnote Close Yost and Flowers are therefore deeply mistaken to suggest that a sentence reduction under Section 3582(c)(1)(A) “is a commutation by another name.” 67Open this footnote Close this footnote 67 Yost & Flowers, supra note 5, at 3. …Open this footnote Close

B. Section 3582(c)(1)(A) and Separation of Powers

With the foregoing in mind, it is easy to understand the infirmity of Yost and Flowers’ separation-of-powers critique. I offer four reasons why Section 3582(c)(1)(A) does not violate structural constitutional principles. First, the sentence-reduction power is far narrower than the pardon power. Second, granting a sentence reduction does not impede the President’s ability to carry out constitutional responsibilities. Third, the sentence-reduction statute narrows, rather than expands, Congress’s power, and it is consistent with the tradition of judicial sentencing discretion dating back to the Founding. Finally, Yost and Flowers’ position cannot be squared with countless other statutes and rules that authorize back-end sentence reductions.

To start, beyond those explained in the preceding subsection, there are other reasons why the sentence-reduction statute does not permit courts to exercise the whole of the pardon power. For one, the pardon power can be exercised at any time—even before conviction or sentence. 68Open this footnote Close this footnote 68 See Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) (noting that the pardon power may be “granted before conviction”). …Open this footnote Close Section 3582(c)(1)(A) applies only after a person has been sentenced. Some of the defined extraordinary and compelling reasons are even more temporally limited. If prisoners want to raise a change in the law as an extraordinary and compelling reason for relief, they must have “served at least 10 years of the term of imprisonment.” 69Open this footnote Close this footnote 69 .U.S. Sent’g Guidelines Manual § 1B1.13(b)(6) (U.S. Sent’g Comm’n 2023). …Open this footnote Close Another difference between the pardon power and Section 3582(c)(1)(A) is the scope of possible relief. The pardon power allows the President not only to reduce a sentence, but to forgive the underlying conviction. Section 3582(c)(1)(A) authorizes a court only to reduce a term of imprisonment. Even a person whose sentence is reduced to time served may subsequently receive a pardon by the President. Yet another difference is the triggering mechanism by which an entity can grant relief. Section 3582(c)(1)(A) authorizes relief only “upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant.” 70Open this footnote Close this footnote 70 18 U.S.C. § 3582(c)(1)(A). …Open this footnote Close But the President can grant a pardon sua sponte.

Second, and following closely from my last point, Section 3582(c)(1)(A) does not “impede the President’s ability to perform his constitutional duty.” 71Open this footnote Close this footnote 71 Morrison v. Olson, 487 U.S. 654, 691 (1988). …Open this footnote Close Even the most expansive view of the sentence-reduction statute leaves untouched the most fundamental components of the pardon power. Especially because the pardon power was intended primarily as a powerful check on the legislative and judicial branches, obviating the need to exercise a pardon hardly interferes with “discretion [that] is so central to the functioning of the Executive Branch as to require as a matter of constitutional law” that Section 3582(c)(1)(A) be invalidated. 72Open this footnote Close this footnote 72 Id. at 691-92. …Open this footnote Close In this context, the greater power for Congress to eliminate all federal criminal law (and thereby extinguish the pardon power) includes the lesser power to grant post-sentencing relief from federal criminal laws (and thereby preserve the pardon power).

The President also retains control over the use of the sentence-reduction statute. The Sentencing Commission defines the scope of the “extraordinary and compelling” reasons standard, 73Open this footnote Close this footnote 73 See 28 U.S.C. § 994(t). …Open this footnote Close and sentence reductions must be “consistent with applicable policy statements issued by the Sentencing Commission.” 74Open this footnote Close this footnote 74 18 U.S.C. § 3582(c)(1)(A). …Open this footnote Close Although the Sentencing Commission is housed in the judicial branch, “Congress has empowered the President to appoint and remove Commission members,” and as such, “the President’s relationship to the Commission is functionally no different from what it would have been had Congress not located the Commission in the Judicial Branch.” 75Open this footnote Close this footnote 75 Mistretta v. United States, 488 U.S. 361, 386 n.14 (1989). …Open this footnote Close Indeed, “the Executive Branch’s involvement in the Commission is greater than in other independent agencies.” 76Open this footnote Close this footnote 76 Id. …Open this footnote Close Were the President concerned about preserving the pardon power, he or she could exercise indirect authority over the Sentencing Commission to have it issue a policy statement precluding any sentence reductions whatsoever, or otherwise limiting their availability. The President could appoint, for example, commissioners who have expressed a desire to circumscribe the sentence-reduction system. The President could also tempt commissioners away from the Commission by offering other high-status positions within the Executive Branch. 77Open this footnote Close this footnote 77 See id. at 409 (“[T]he President has the power to elevate federal judges from one level to another or to tempt judges away from the bench with Executive Branch positions.”). …Open this footnote Close

Third, Section 3582(c)(1)(A) does not unduly aggrandize the power of either Congress or the courts. 78Open this footnote Close this footnote 78 See generally id. at 380-84 (applying the separation-of-powers doctrine and concluding that the Sentencing Commission does not interfere with the Judicial Branch). …Open this footnote Close With respect to the former branch, Section 3582(c)(1)(A) is most properly understood as limiting Congress’s power by providing a safety valve from overbroad criminal statutes. 79Open this footnote Close this footnote 79 See S. Rep. No. 98-225, at 121. …Open this footnote Close Nor is there a constitutional problem vesting the judiciary with this power. Recall that “Congress may delegate to the Judicial Branch nonadjudicatory functions that . . . are appropriate to the central mission of the Judiciary.” 80Open this footnote Close this footnote 80 Mistretta, 488 U.S. at 388. …Open this footnote Close As the Court found in Mistretta, delegating to the courts greater power over sentencing matters is squarely within “the Judiciary’s special knowledge and expertise.” 81Open this footnote Close this footnote 81 Id. at 396. …Open this footnote Close In Concepcion v. United States, 82Open this footnote Close this footnote 82 142 S. Ct. 2389 (2022). …Open this footnote Close the Court emphasized that “[f]ederal courts historically have exercised . . . broad discretion . . . at an initial sentencing hearing.” 83Open this footnote Close this footnote 83 Id. at 2398. …Open this footnote Close Importantly, “[t]hat discretion also carries forward to later proceedings that may modify an original sentence.” 84Open this footnote Close this footnote 84 Id. …Open this footnote Close

Fourth, Yost and Flowers’ argument proves too much. There are countless other examples of criminal laws and rules that overlap modestly with the pardon power. I return now to the examples in Part I. The President has the power to pardon almost anyone for any reason—including that their custody violates the Constitution or laws of the United States. But the authors do not suggest that habeas is itself unconstitutional, despite the statute authorizing courts to grant relief on the same basis. Or take Rule 35(b), which allows a court to reduce a person’s sentence for providing substantial assistance in the investigation of another person. The President could surely reduce a person’s sentence—or forgive the underlying conviction altogether—for the same reason.

The authors attempt to marshal authority 85Open this footnote Close this footnote 85 Yost & Flowers, supra note 5, at 3-4. …Open this footnote Close for their position by citing Affronti v. United States, 86Open this footnote Close this footnote 86 350 U.S. 79 (1955). …Open this footnote Close but Affronti offers little support. In that case, the Court considered whether a district court could, under the relevant statute, place a defendant on probation after he had begun serving the first in a series of consecutive sentences. 87Open this footnote Close this footnote 87 See id. at 79-80, 82. …Open this footnote Close The Court’s “final analysis” was “governed by the meaning of the statute.” 88Open this footnote Close this footnote 88 Id. at 83. …Open this footnote Close Although the Court’s ultimate interpretation “avoid[ed] interference with the parole and clemency powers,” 89Open this footnote Close this footnote 89 Id. …Open this footnote Close the opinion is best understood as a semantic construction of the statute rather than a substantive application of the avoidance canon. The Court conducted no separation-of-powers analysis, nor did it cite any separation-of-powers cases.

In the end, the sentence-reduction statute furthers rather than violates the separation of powers. “The structural principles secured by the separation of powers protect the individual” by forestalling abuses of government. 90Open this footnote Close this footnote 90 Bond v. United States, 564 U.S. 211, 222 (2011). …Open this footnote Close When one branch exercises self-restraint, the separation-of-powers doctrine has succeeded without recourse to external checks and balances. The sentence-reduction statute averts many of the Congress-created abuses of the criminal legal system, obviating the need for the President to exercise the pardon power in those instances without obviating the power itself.

C. Unitary Executive

The authors’ unitary executive theory does not save their thesis. They contend that Section 3582(c)(1)(A) interferes with the political accountability that limits the President’s pardon power. 91Open this footnote Close this footnote 91 See Yost & Flowers, supra note 5, at 1, 4-6. …Open this footnote Close They elaborate, “The unitary executive makes the pardon power work. . . . [P]olitical pressures, and the weight of the responsibility conferred by the pardon power, impose important limits where otherwise there are none.” 92Open this footnote Close this footnote 92 Id. at 5. …Open this footnote Close Yost and Flowers’ argument fails on both constitutional and policy grounds.

Political accountability—or the supposed lack thereof—does not pose a constitutional problem for Section 3582(c)(1)(A). Yet again, their argument proves too much and runs headlong into precedent. The authors’ criticism indicts the entire federal sentencing regime we have had since the Founding. Judges have had wide latitude in sentencing defendants since the early days of the Republic—and for good reason. 93Open this footnote Close this footnote 93 See Concepcion v. United States, 142 S. Ct. 2389, 2398-99 (2022) (quoting Kate Stith & Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998)) (noting that federal judges have always had wide sentencing discretion). …Open this footnote Close Making decisions about sentence length by reference to political considerations would consistently and egregiously over-sentence criminal defendants. 94Open this footnote Close this footnote 94 John Rappaport, Some Doubts About “Democratizing” Criminal Justice, 87 U. Chi. L. Rev. 711, 782 & n.415 (2020). …Open this footnote Close Today, as at the Founding, judges properly consider mercy in the routine process of sentencing. For instance, the decision to sentence a defendant to the low end of a Guidelines range might be influenced by notions of mercy. So too, the factors that guide a judge’s decision to grant a downward departure from the Guidelines range sound in the register of mercy. 95Open this footnote Close this footnote 95 See, e.g., 18 U.S.C. § 3553(a)(1) (requiring courts to consider “the history and characteristics of the defendant” in fashioning a sentence); id. § 3553(a)(2)(D) (requiring courts to consider the ability of a sentence “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”). …Open this footnote Close If such politically unaccountable exercises of mercy are constitutionally unproblematic at sentencing, it is hard to conceive why post-sentencing exercises of mercy might be more constitutionally dubious simply because they are also politically insulated.

Perhaps aware of the shortcomings of their unitary executive argument, the authors finally turn to fearmongering. The supposed lack of political accountability will “result in more early releases,” they say, and “a[t] least some of these individuals will go on to assault, maim, rape, and murder law-abiding citizens.” 96Open this footnote Close this footnote 96 Yost & Flowers, supra note 5, at 6. …Open this footnote Close The authors say this without citing a single source for support. But data points to the contrary. Evidence shows that recidivism rates among First Step Act beneficiaries are far lower than recidivism rates among the general prison population. 97Open this footnote Close this footnote 97 See Ashley Nellis & Liz Komar, The First Step Act: Ending Mass Incarceration in Federal Prisons, Sent’g Project (Aug. 22, 2023) (first citing Off. of the Att’y Gen., U.S. Dep’t of Just., First Step Act Annual Report (2023); and then citing U.S. Gov’t Accountability Off., GAO-23-105139, Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement Its Risk and Needs Assessment System (2023)), https://perma.cc/2XQK-Q3PD. …Open this footnote Close This data makes sense, because the Section 3553(a) factors are a “major guardrail” on the capricious use of Section 3582(c)(1)(A). 98Open this footnote Close this footnote 98 Erica Zunkel & Jaden M. Lessnick, Putting the “Compassion” in Compassionate Release: The Need for a Policy Statement Codifying Judicial Discretion, 35 Fed. Sent’g Rep. 164, 170 (2023). …Open this footnote Close All empirical evidence points to judges applying these factors faithfully and cautiously. 99Open this footnote Close this footnote 99 See id. at 170-71 (collecting examples and data showing the frequency with which judges use the § 3553(a) factors to deny sentence-reduction motions, even when a defendant has established extraordinary circumstances for a sentence-reduction). …Open this footnote Close

At bottom, the authors’ unitary executive theory is window dressing for a policy argument, not a legal argument. The notion that mercy may be exercised only when consistent with the will of the majority of the electorate is foreign to our constitutional history. 100Open this footnote Close this footnote 100 See NLRB v. Noel Canning, 573 U.S. 513, 525 (2014) (“[T]he longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’” (first quoting M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and then quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))). …Open this footnote Close Federal judges have been vested with wide sentencing discretion since the Founding precisely because they are politically insulated from the sort of impulsive and unsupported fearmongering propagated by Yost and Flowers. And whatever the merits of their policy argument, the Constitution “ha[s] nothing to do with it.” 101Open this footnote Close this footnote 101 Obergefell v. Hodges, 576 U.S. 644, 713 (2015) (Roberts, C.J., dissenting). …Open this footnote Close

IV. Conclusion

Yost and Flowers implore their audience to consider the role of humility in our constitutional system. 102Open this footnote Close this footnote 102 Yost & Flowers, supra note 5, at 1. …Open this footnote Close But there is nothing humble about seeking to invalidate Section 3582(c)(1)(A)—and a much wider swath of federal law—simply because a sentence reduction might resemble a pardon at the greatest level of abstraction. Our Constitution contemplates and depends on some diffused responsibilities. That was the rule at the Founding, and it remains the rule today. Only by twistification can one conclude that Section 3582(c)(1)(A) confers an unbounded mercy power upon federal judges. To be sure, sentence reductions are merciful in their nature. But no sound theory of constitutional interpretation confers upon the President a monopoly on compassion. Those who suppose otherwise offend the very humility and judicial restraint they purport to champion.

* J.D. 2023, University of Chicago Law School. Law clerk to Judge Jay S. Bybee, U.S. Court of Appeals for the Ninth Circuit. I thank Judge Bybee and T. Hunter Mason for characteristically incisive comments and discussions. I am also grateful to the editors of the Stanford Law Review Online, whose hard work greatly improved this piece. All views and errors are mine alone.