US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year

This morning brought the first public US Sentencing Commission hearing in nearly four years, which was convened to finalize the USSC's priorities for the coming amendment year.   This new USSC news release describes all the details with links to key documents:

The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023. Among its top priorities is implementation of two significant changes made by the First Step Act of 2018.

The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion. This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants. At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results.

“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission. 

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties. The Act expanded eligibility to certain offenders with more than one criminal history point. The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs. “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

A complete list of final priorities may be found here and in an upcoming edition of the Federal Register.

From a quick review, the biggest change in the finalized priorities from the proposed priorities seems to be the addition of this new item: "(10) Consideration of possible amendments to the Guidelines Manual to address sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and committed by law enforcement or correctional personnel."

As I mentioned after the release of the proposed USSC priorities, there are lots and lots of "hot topics" covered in many of the topics now to be tackled by the Commission in this list of now finalized priorities. I am extremely excited to see what the new Commission has planned for these topics.

A few prior related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission
• New US Sentencing Commission releases its first set of tentative policy priorities 
• Get ready: new US Sentencing Commission soon to finalize new policy priorities
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

UPDATE:  The folks at Marijuana Moment have spotlighted via this report, headlined "Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes," that the USSC's finalized priorities included a notable addition with regard to low-level marijuana offenses and criminal history.  Here are the details:

The federal U.S. Sentencing Commission (USSC) says it is considering possible amendments to guidelines on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing decisions for new convictions.

On Friday, the independent branch of the federal judiciary unanimously approved 14 policy priorities for an amendment cycle ending in May 2023. The cannabis item wasn’t included in an earlier version of the priority proposal list circulated for public feedback earlier this month, but it was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation....

Now, USSC is calling it a priority to look into amending the guidelines for defendants’ criminal history reviews when it comes to “the impact of simple possession of marihuana offenses.”...

While the commission must still develop and pass any potential amendments to its guidelines, it is possible that it could soon be the case that prior simple cannabis possession offenses would be a non-issue from a sentencing perspective for new defendants. It is also potentially the case that a new sentencing policy for cannabis criminal histories could be retroactively applied.