In the News

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.

Boasting a full quorum for the first time in years, the U.S. Sentencing Commission recently met and voted on its most pressing priorities for 2022. At the top of the list is implementing the First Step Act, specifically the guidelines governing motions for sentence reductions under 18 U.S.C. 3582(c)(1)(A), also known as “compassionate release.” The deadline to submit guidelines amendments to Congress is May 1, 2023. The Commission has published its other reform priorities, which include amendments to the drug trafficking guidelines (including the safety valve), the firearm offense guidelines, the career offender guidelines, the criminal history guidelines, whether guidelines commentary can be binding, and whether acquitted conduct can be considered in calculating a defendant’s guidelines or imposing a sentence.

Since the Supreme Court’s landmark decision in New York State Rifle v. Bruen, where the Court held that firearm regulations must be consistent with firearm regulations as they existed at the time of the Constitution’s ratification, district courts across the country have applied the new framework in Bruen to strike down several criminal firearm statutes as unconstitutional. Most recently, courts have struck down federal statutes prohibiting possession of firearms with obliterated or altered serial numbers, possession of a firearm by a person under indictment, and possession of a firearm by a person subject to a domestic restraining order.

In late September, several U.S. senators from both parties introduced legislation seeking to create more oversight and transparency from the Bureau of Prisons, which has recently made headlines for corruption scandals, staffing crises, and its poor management of the COVID-19 pandemic. The Federal Prison Oversight Act, if passed during the upcoming “lame duck” session, would require the DOJ to appoint an ombudsman to respond to complaints from inmates regarding conditions at BOP facilities and other grievances. It would also require the DOJ’s inspector general to review and evaluate conditions at the BOP’s 122 facilities.

Last month, the U.S. Sentencing Commission published a new report titled “The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence,” summarizing hte history and development of Chapter 8 of the U.S. Guidelines, which apply to defendant-corporations and other defendant-entities.

Earlier this month, President Biden signed legislation extending the statute of limitations for federal prosecutions against individuals and businesses accused of fraudulently obtaining COVID-19 relief funds, specifically through the PPP and EIDL loan programs. The PPP and Bank Fraud Enforcement Harmonization Act and the COVID-19 EIDL Fraud Statute of Limitations Act extended the statute of limitations to ten years, up from five years.

Last week, the U.S. Sentencing Commission published a new study on defendants sentenced on federal robbery charges in 2021. The report provides a comprehensive look at the demographics and other characteristics of robbery offenders, as well as well as their ranges of prior criminal history and the types of sentences imposed. Notably, the report also identifies characteristics of the robbery offense itself such as the identity of the victim, the type of property taken, whether violence was used or threatened, whether a weapon was involved, and whether the victim was injured or killed.

For the first time since 2019, the U.S. Sentencing Commission will have a quorum of members and the ability to promulgate new guidelines and regulations for federal sentencing. The Commission’s newest members were approved by the U.S. Senate by voice vote on August 4, 2022. Click here to read our previous coverage of the newest appointees to the Commission.

On Tuesday, July 26, 2022, at 2:30PM, the U.S. Senate’s Subcommittee on Criminal Justice and Counterterrorism will hold a hearing on decriminalization of marijuana at the federal level. The witnesses include Dr. Malik Burnett, medical director of the Maryland Department of Health’s Center for Harm Reduction Services, Edward Jackson, the Chief of Annapolis Police Department, Weldon Angelos, a former inmate who received a pardon and is now the president of the Weldon Project, Steven Cook, a former Associate Deputy Attorney General under Jeff Sessions, and Alex Berenson, a former New York Times reporter known for his attempts to link marijuana to violent crime and mental illness.