Justices in the U.S. Supreme Court's conservative faction questioned Wednesday whether the U.S. Sentencing Commission overstepped when it said reductions in mandatory minimum sentences could be part of a court's consideration when weighing "compassionate release" for federal prisoners.

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Question presented in Rutherford v. United States:
Whether, as four circuits permit but six others prohibit, a district court may consider disparities created by the First Step Act's prospective changes in sentencing law when deciding if "extraordinary and compelling reasons" warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).

Question presented in Carter v. United States:
Whether the Sentencing Commission acted within its expressly delegated authority by permitting district courts to consider, in narrowly cabined circumstances, a nonretroactive change in law in determining whether "extraordinary and compelling reasons" warrant a sentence reduction.
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In a pair of consolidated cases, lawyers for two federal inmates seeking an early end to their sentences argued that the commission was within its congressionally delegated power to say that courts could consider whether the First Step Act's impact on incarceration guidelines would have resulted in lesser sentences, even though Congress had said the sentence reductions didn't apply retroactively.

"The First Step Act was obviously heavily negotiated ... and retroactivity is, of course, always a key element in the negotiations," said Justice Samuel Alito. "Congress specifically says this is not going to be retroactive to those cases where sentences have already been imposed."

Justice Alito continued: "And then the commission, though, then comes in and says we're now going to give a second look for district judges to revisit those sentences. ... Summarize why you don't think the commission, by doing this, has kind of countermanded Congress,"

The justices were asked to settle a split on what courts can consider when determining whether "extraordinary and compelling" reasons exist to allow a prisoner compassionate release. The Third, Fifth, Sixth, Seventh, Eighth and D.C. circuits have ruled that the commission's interpretation is wrong, while the First, Fourth, Ninth and Tenth circuits have allowed courts to consider the disparity between pre- and post-First Step Act sentences.

David Frederick of Kellogg Hansen Todd Figel & Frederick PLLC, representing Philadelphia robbery convict Daniel Rutherford, argued that when Congress created the sentencing commission, it gave it authority to determine what counts as "extraordinary and compelling" circumstances.

The only factor lawmakers explicitly forbade courts from including in those circumstances was "rehabilitation alone." Other than that there was "no limitation on what information a court may receive" in making its determination, Frederick said.

Justice Amy Coney Barrett repeatedly raised the question of whether a judge's disagreement with the mandatory minimums could be enough to order early release. Frederick replied that even if a judge thinks a sentence is too harsh or if it would have been lower after the sentencing reforms, the Sentencing Commission's guidelines require other factors, like a prisoner's age, health and family situation, to be part of the overall picture.

"A judge is certainly not within his or her discretion to disagree with an act of Congress. Where I think the judges have addressed this particular issue and where the Sentencing Commission addressed this particular issue was to say that in the total mix of circumstances and information, it could be a factor," he said.

Chief Justice John Roberts quipped that the term "mandatory minimum" sentence may no longer be applicable and that it should instead be a "presumptive" sentence.

Though Justice Roberts had expressed concerns about the commission opening the floodgates to applications for compassionate release, Frederick said there were administrative reviews, district judges and appellate courts to weed out the inappropriate applicants on a case-by-case basis.

David A. O'Neil of Debevoise & Plimpton LLP, representing Johnnie M. Carter, another bank robbery convict appealing the Third Circuit's denial of compassionate release, added that the commission had taken a "middle ground" compared to making the changes in the First Step Act retroactive, by requiring that at least 10 years of a sentence be served before considering release and making courts consider factors other than just the sentencing disparities.

"The commission's history is that it has been quite cautious, not cavalier, about this power," he said.

He said the commission's guidelines were based on Congress' "silence" on specific factors to be weighed for compassionate release, but the government wanted that same silence to be read as a ban on considering sentence disparities at all.

Justice Neil M. Gorsuch questioned if the Sentencing Commission's guidelines were "disrespectful" to Congress, a point echoed by Eric J. Feigin, deputy solicitor general in the Department of Justice. Feigin argued that the Sentencing Commission guidelines were "an attack on Congress" and said the First Step Act was explicitly not meant to reduce sentences that had already been imposed or were pending at the time the law passed.

"It isn't license for individual judges and the Sentencing Commission to create what is effectively a new form of judicial parole," he said. "... I think it's an overused kind of homily that Congress doesn't hide elephants in mouse holes, but this is a pretty big elephant to have hidden in this mouse hole."

Feigin faced tougher questioning from the court's liberal justices, including Justice Ketanji Brown Jackson, who pressed him on whether the sentencing changes could be what puts an otherwise noncompelling application for release over the line.

Feigin responded that even if the courts were considering a number of factors to decide if they added up to meeting the criteria for compassionate release, the changes in sentencing should not have been on the table.

"They are adding something that is manifestly not extraordinary and not compelling because it is the normal operation and here the express operation of nonretroactivity law," he said.

The justices on Wednesday also contemplated the same question in the case against a man serving two mandatory consecutive life sentences for his role in a 2000 double murder-for-hire related to Mexican gang activity.

Rutherford is represented by David C. Frederick, Justin B. Berg, Alex P. Trieger and Derek C. Reinbold of Kellogg Hansen Todd Figel & Frederick PLLC.

Carter is represented by Steven Tegrar, James Stramm, Ned Terrace, Sarah Brody-Bizar, Laura Hallas, David A. O'Neil and Suzanne Zakaria of Debevoise & Plimpton LLP.

The government is represented by Eric J. Feigin, D. John Sauer, Matthew R. Galeotti and Andrew C. Noll of the U.S. Department of Justice.

The cases are Carter v. United States and Rutherford v. United States, consolidated at case number 24-820, in the Supreme Court of the United States.

--Editing by Rich Mills.