In the News

Last month saw two important reports issued by the DOJ and the U.S. Sentencing Commission. The DOJ released its Annual First Step Act Report, which details the BOP’s efforts to implement the FSA, which reflects that inmates are benefiting from new programing that lets them earn time of their sentences and reduce their recidivism rates. The Sentencing Commission also released an updated Compassionate Release Report, which reflects trends among inmates requesting compassionate release or sentence reductions from the courts.

Last month, 10 of President Biden’s nominees for US Attorney and US Marshal were confirmed after senate republicans lifted a hold on the nominations. The US Attorneys will serve in Georgia, Nevada, Michigan, Ohio, the Virgin Islands, Utah, and New Hampshire. President Biden also announced five more nominees for US Attorney.

Last month saw a lot of progress towards expanding clemency to individuals serving time in federal prison or living with a federal conviction. The Attorney General appointed a new Pardon Attorney, Elizabeth Oyer, who previously worked with the federal public defender’s office in Maryland. Shortly after her appointment, President Biden announced 3 pardons and 75 sentence commutations, mostly for individuals convicted of non-violent drug offenses. The Administration has signaled more clemency grants are forthcoming.

After lacking a quorum for over three years, and thus not being able to develop or update the federal sentencing guidelines, the U.S. Sentencing Commission should soon have its full slate of 7 commissioners. President Biden’s nominees to the commission include former and current federal judges, former and current prosecutors and public defenders, and other advocates with experience in federal sentencing issues.

This week, the U.S. Sentencing Commission, which has lacked a quorum for 3 years, released its annual compilation of federal sentencing statistics, the “sourcebook.” The Commission’s report includes statistics regarding the length of sentences imposed based on the type of offense, the demographics of the offender, the jurisdiction for prosecution, and other measures. The sourcebook also reports on appeal issues and sentence modifications and reductions. Among the most notable stats…

On March 10, 2022, the Department of Justice issued a press release announcing the appointment of a “Director for COVID-19 Fraud Enforcement,” a position that would head the DOJ’s criminal and civil enforcement actions relating to COVID-19 relief fraud. To date, the DOJ reports over $8 billion in alleged fraud, including PPP and EIDL loan fraud and unemployment insurance fraud….

Regarding PPP and EIDL loan fraud, the DOJ announced that “approximately 500 defendants have been charged in over 340 cases with alleged intended losses of over $700 million.” The DOJ also claims to have seized over $1 billion in EIDL loan fraud proceeds. Regarding unemployment insurance fraud, the DOJ announced that “over 430 defendants have been charged and arrested for federal offenses related to UI fraud.”

The DOJ has issued a new memo intended to prevent US Attorneys Offices from requiring defendants to waive their right to file for compassionate release as part of their plea agreements. The practice, common in some jurisdictions, had come under fire after a recent NPR article and criticism from advocacy groups.

As the U.S. House held a hearing on criminal issues, including the applicability of the First Step Act and Compassionate Release during the COVID-19 pandemic, outgoing BOP director Michael Carvajal submitted written testimony. Director Carvajal noted that the BOP has started to award earned time credits to inmates, resulting in several hundreds being released. Most were transferred to supervised release or pre-release custody such as halfway houses. Director Carvajal also stated the BOP would be applying time credits “towards supervised release for the sentences of over 4,900 inmates.” Director Carvajal further stated that, since March 26, 2020, the BOP has released more than 37,000 inmates to community custody or home confinement, though only 9,000 of those inmates were transferred “directly pursuant to the authority granted by the CARES Act.” He also reported that the BOP is aware of 4,025 compassionate release motions being granted by courts since passage of the First Step Act, with the vast majority (3,851) coming during the pandemic. Finally, Director Carvajal reported that 1,177 inmates have been released under the Elderly Offender Home Detention Program.

Last week, the Department of Justice announced a new effort to target and prosecute “domestic terrorism” cases” by establishing a new unit within its National Security Division. Since there is no specific law criminalizing “domestic terrorism,” as there is international terrorism, the new unit will likely investigate and prosecute offenders under federal laws aimed at protecting government property, prohibiting unusual weapons, interstate threats, firearm offenses, arson, and hate crimes.

Justice Sotomayor, joined by Justice Barrett, issued a statement regarding the denial of certiorari in a case addressing the circuit split over the proper definition of “controlled substance offense”under the career offender sentencing guidelines. The justices were critical of the fact that “the Sentencing Commission has not had a quorum for three full years,” highlighting the “direct and severe consequences for defendant’s sentences” absent a functioning Commission.