In the News

Last week, the U.S. Sentencing Commission voted to make a pair of Guidelines amendments retroactive, meaning they could apply to thousands of federal inmates serving time. Under 18 U.S.C. 3582(c)(2),”in the case of defendant who has been sentenced to a term of imprisonment based on a range that has subsequently been lowered by the Sentencing Commission…upon motion of the defendant …the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable ….” 

In a 4-3 vote, the Commission voted to make the “status points” amendment retroactive. Whereas a defendant previously received 2 points for committing an offense while under a term of supervision (probation, supervised release), the new Guidelines amendment will reduce the number of points or eliminates them completely for such offenders. By making this amendment retroactive to offenders who previously received the 2-point enhancement, almost 11,500 inmates are eligible for a potential sentence reduction. The average inmate would have had a lower Guidelines range by 14 months under the new Guidelines.

In another 4-3 vote, the Commission voted to make the “zero point offender” amendment retroactive. Under the new Guidelines, offenders will receive a 2-point reduction to their offense level if they have no criminal history and their offense does not present certain aggravating factors. Over 7,272 inmates would have been eligible for this reduction, and the average inmate would have had a lower Guidelines range by 15 months under the new Guidelines.

The retroactive amendments go into effect on February 1, 2024, though inmates can file motions for sentence reductions immediately.

In other Commission-related news, the Commission voted to consider additional policies such as “possible amendments to the Guidelines Manuel to prohibit the use of acquitted conduct in applying the guidelines.”

ast month, the Department of Justice released its “First Step Act Annual Report,” summarizing efforts to implement the sentencing reforms enacted under the First Step Act of 2018.he report covers the BOP’s implementation of its recidivism risk assessment (the controversial PATTERN score, which allegedly is racially biased), its implementation of recidivism-reducing programs that allow inmates to earn time off their sentences, the status of prison work programs, and other important reforms under the FSA.

The report also provides brief summaries of some of the most significant steps taken since the last report issued in April 2022 Among those developments, the BOP reports that it has finalized its policy for awarding “earned time credits” and has been awarding those credits as quickly as possible. The BOP also reports that it has expanded the use of home confinement for eligible inmates, wherein they allow inmates to serve the last months of their sentence in home confinement.

Yesterday, the U.S. Sentencing Commission issued a memorandum regarding the amendments to the U.S. Sentencing Guidelines and whether two amendments should apply retroactively– 1) the amendment that reduces the potential criminal history points assessed for defendants who commit their offense while under another sentence, and 2) the amendment providing a two-level downward adjustment for defendants with zero criminal history points.

In its conclusion, the Commission estimates that 11,49 offenders in BOP custody would have faced a lower sentencing range under the new amendment reducing the potential criminal history points for defendants who committed their offense while under another sentence. The average sentence reduction, based on those potential lower Guidelines ranges, would be 11.7, and 2,000 inmates would be eligible for release by November 1, 2023, when the amendments are slated to go into effect. Additionally, the Commission estimates that 7,272 inmates in BOP custody would have a lower Guidelines range if re-sentenced under the amendment providing a 2-level downward departure for having zero criminal history points, with an average reduction of 17.6%. An estimated 1,200 offenders would be eligible for release by November 1, 2023 if the amendment is made retroactive.

Last month, the Sentencing Commission released its annual report examining federal sentencing statistics across each judicial district and appellate circuit from October 1, 2021 through September 30, 2022. The report breaks down sentencing trends by reference to the type of crime and the type of drug in drug cases, comparing post-plea sentences to post-trial sentences, examining incarceration rates for offenders eligible for non-prison sentences, measuring sentence length by type of crime, comparing the frequency of downward variances compared to within-Guidelines sentences, and other metrics.

In yet another blow to 18 U.S.C. 922(g), the statute prohibiting certain categories of people from possessing, a district court in Texas has struck down 922(g)(3) as unconstitutional under the Supreme Court’s decision last year in Bruen. Section 922(g)(3) prohibits “unlawful users” of controlled substances from possessing firearms. After a detailed analysis, the district court found there was no history or tradition criminalizing the mere possession of firearms by unlawful drug users.

For the first time in years, the U.S. Sentencing Commission is proposing and adopting amendments to the Federal Sentencing Guidelines. The proposed amendments are sweeping, making significant changes to Guidelines provisions governing compassionate release and sentence reductions, reduced penalties for first offenders, career offender designations, firearm offenses, and more. The Commission noted that other important issues, such as considering acquitted conduct for sentencing purposes, would be taken up next year.

Earlier this year, the Drug Enforcement Administration issued an opinion contending that delta-8-THC-O and delta-9-THC-O (as distinguished from delta-8-THC and delta-9-THC) are illegal controlled substances. THC-O is another cannabinoid that can be derived from hemp and marijuana, like Delta-8-THC and Delta-9-THC, though it does not occur naturally in the plants. The DEA’s position reflects that, going forward, the DEA will likely scrutinize and oppose any hemp product that contains substances that do not naturally occur in hemp plants, even if the manufacturing process involves minimal intervention. There is a grey area between “extraction” and “synthesisation,” however, and there will almost certainly be litigation seeking to clarify where the DEA draws the line.

Earlier this year, at the behest of the Department of Justice, the Bureau of Prisons announced that it would implement changes to the Inmate Financial Responsibility Program–the system through which the government can access an inmate’s money to pay off the inmate’s fines or restitution obligations. The changes come after some organizations criticized how some inmates are able to amass large sums of money in their prison accounts while allegedly shirking their obligations to pay fines and restitution, though other advocates claim the BOP’s new changes would hurt poor inmates.
The new proposals, outlined in the Inmate Financial Responsibility Program in the Federal Register, would eliminate the rule requiring that inmate accounts always have a minimum balance ($75), which exists so inmates can pay for phone calls with family members. Another new proposal would require that half of the money earned by inmates working prison jobs would go to fine and restitution obligations.

Last week, the BOP’s new director, Colette Peters, issued new guidance regarding how the BOP calculates and administers earned time credits under the First Step Act, which inmates can accumulate and use to reduce their sentences by enrolling in rehabilitative programing offered by the BOP. Under Director Peters’ new guidance, inmates will be able to see how many earned time credits in total they will be able to earn while serving their sentence. As a result, they will have an estimated release date based on their potential earned time credits. Inmates will also be able to continue accumulating credits while in protective custody, administrative detention, or quarantine. Additionally, the 18-month cut-off for earning credits has been eliminated.

The BOP has recently been criticized for interpreting the First Step Act narrowly and denying earned time credits to many inmates who sought to have their sentences reduced.

In particular, the BOP had been using an “interim calculation policy” since January 2022 that allowed eligible inmates to accumulate time credits up to 365 days (1 year) “or 18 months from their release date, whichever happens first.” In other words, inmates serving shorter sentences were unable to maximize the amount of time their sentences could be reduced. A district judge in the Southern District of New York recently struck down this rule, holding that this 18-month cut-off date was not consistent with or authorized by the Final Rule published in the Federal Register.