In the News

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.

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.