In the News

Late last month, the Department of Justice submitted written testimony to the U.S. Senate “urging Congress to pass legislation to permanently end the sentencing disparities between crack cocaine and powder cocaine. The DOJ stated that the sentencing disparity, established in the 1980s, was based on “misguided policy” and “misinformation.” The DOJ further noted that 87.5% of people in federal prison serving time for crack offenses were black. Senator Grassley issued a written statement in support of reforming federal drug laws but criticized the DOJ for not providing a live witness.

The U.S. Sentencing Commission has released data reflecting the number of “compassionate release” motions that have been granted during the COVID-19 pandemic (21%). The report breaks down the data by showing how many were granted and denied by district and by the year when the inmate’s original sentence was imposed, as well as other information.

A district court in the Eastern District of Washington recently granted an inmate’s request for compassionate release based on changes in marijuana laws since the defendant was convicted of growing marijuana and using a firearm. The opinion is an extension of the argument, adopted by several circuits, that changes to sentencing laws can be the basis for an inmate’s sentence reduction if the inmate would have been sentenced to less time under today’s laws, even where Congress does not make these changes retroactive.

The Eleventh Circuit became the first, and so far the only, circuit court to hold that district courts considering sentence reductions motions under 3582(c)(1)(A) are bound by the criteria under USSG 1B1.13. To date, seven other circuits have held that district courts have discretion to determine if an inmate has presented extraordinary and compelling reasons warranting a reduction. District courts in the Eleventh Circuit now have much less discretion to reduce an inmate’s sentence.

The U.S. Sentencing Commission has issued a “Retroactivity Data Report,” reflecting the data showing how many inmates have had their sentences reduced under the First Step Act’s retroactive sentencing provisions for crack-cocaine offenders. The data includes a break down by criminal history category, whether the offender had a firearm, and the average reduction.

The Biden administration announced the nominations of six more federal judges. The nominations are for the 1st, 2nd, and 10th appellate circuits as well as the three district courts. President Biden has nominated 19 judges, and none of yet been confirmed.

Since our last update, the harshest sentence for a January 6 defendant to date was imposed earlier this month, when U.S. District Court Judge Amit Mehta sentenced a former New York police officer to 120 months in federal prison for his role in the Capitol Riots. Defendant Thomas Webster was convicted after a trial in which the government presented evidence that he had attacked police officers at the Capitol with a metal flagpole and tried to rip off an officer’s gas mask. The jury rejected Webster’s self defense argument and returned a guilty verdict after two hours of deliberation.

Prior to Webster’s 10-year sentence, the longest sentences so far had been imposed on Defendants Guy Refitt, a militia member, and Thomas Robertson, another former police officer. Both men were convicted after jury trials for attempting to obstruct congressional proceedings. Both were sentenced to 87 months in prison.

The DOJ recently issued a memorandum to BOP facilities expanding the number of inmates who are eligible for release to home confinement under the CARES Act. While neither the BOP nor the DOJ have published the memo yet, Keri Blakinger of the Marshall Project has obtained a copy of the memo and confirmed its authenticity with the BOP. Among other things, the new criteria allows more inmates with low-level disciplinary issues or Low PATTERN scores to obtain release to home confinement.

The DEA has released its “National Drug Threat Assessment” for the Year 2020. The report contains an exhaustive review of topics such as the different sources for different drugs imported into the U.S., the price and purity levels of several controlled substances, data regarding where most drugs are trafficked or seized, consumption patterns, and other information that can be helpful to defense attorneys in drug cases.

BOP Director Michael Carvajal testified before the Senate on April 15, 2021. He testified that the BOP does not currently have any immediate plans to send inmates back to prison who are currently on home confinement due to the COVID-19 pandemic. The director also testified, however, that Congress needs to pass a law to ensure inmates are not send back when the COVID-19 emergency order is lifted.