In the News

Senators from both parties have teamed up to try to get the COVID-19 Safer Detention Act of 2021 passed through Congress after the bill failed last year. The bill would expand the number of inmates eligible for early release to home confinement due to COVID-19 risks and also lower the “amount of time served” requirement under the Elderly Home Detention Pilot Program.

President Biden and Senate Democrats are planning an aggressive approach to filling up judicial vacancies, including nominating more civil rights lawyers and public defenders, forming a commission to consider “structural changes” to the judiciary, and removing procedural tools like the “blue slip” to facilitate quicker judicial confirmations.

The Department of Justice has issued a memo to federal prosecutors reversing the Trump DOJ’s policy directing prosecutors to seek the harshest charges and sentences possible under the law. Until a long-term policy is implemented, the DOJ is reverting to an Obama-era policy requiring prosecutors to treat charging decisions and sentencing positions as part of an “individualized assessment.”

As the Government continues to identify suspects from the January 6 “Capitol Hill Riots,” we are starting to see what kinds of criminal charges are in play. While treason and advocating the overthrow of Government are not likely to appear in any indictments, rioters at the Capitol have significant exposure to charges like sedition, rebellion or insurrection, and felony trespassing on restricted buildings or grounds.

The most recent COVID-19 relief bill contained a new criminal law called the “Protecting Lawful Streaming Act.” The new law makes it a felony to host streams of copyrighted works without permission, punishable by up to 10 years in prison. While politicians have stressed that the law is only aimed at “commercial, for profit piracy services,” the text of the law is much broader, and would allow prosecutions of individuals and could be applied against those making “fair use” of copyrighted material.

President Biden has nominated Xavier Becerra, California’s Attorney General, to lead the Health and Human Services Department. Based on his experience as a prosecutor and the substantial stimulus money paid out to healthcare providers during COVID-19, legal observers are predicting an aggressive new approach in healthcare fraud enforcement by the government.

Earlier this month, the DOJ instructed the BOP that inmates currently on home confinement under the CARES Act will have to report back to prison once the COVID-19 emergency is over. The DOJ’s memo was issued by the Trump administration, and neither President Biden nor his nominee for Attorney General, Merrick Garland, have stated whether they will reverse that decision or require inmates on home confinement to go back to prison.

Recent legislation called the Due Process Protections Act amended Rule 5 of the Federal Rules of Criminal Procedure. The Rule now requires district courts to issue orders at the initial appearance in every criminal case that reminds prosecutors of their obligations under Brady, lists potential consequences for violations, and sets deadlines for compliance.

As part of an upcoming spending and COVID-19 relief bill, elected officials have come to an agreement to restore federal Pell grants for prisoners seeking higher education.

The incoming Biden administration is expected to increase criminal prosecutions under the Clean Water Act and Clean Air Act, as well as rollback prior administration directives that prioritized “compliance assistance” over seeking civil or criminal penalties. The Biden administration has also announced its intention to establish an Environmental and ClimateJustice Division to help the DOJ’s Environment and Natural Resource Department investigate and prosecute violators of environmental laws and regulations.