Gearing up for a new federal sentencing year that might finally bring some new guideline amendments

Branch by branch, there are a lot of federal sentencing stories to watch as we start a new year.  The last Congress made (halting) progress on some statutory sentencing reforms, but nothing major made it all the way to the President's desk.  With the House of Representatives in GOP control in the new Congress, legislative dynamics have changed in ways that might diminish the prospects for any big reforms in 2023.  But with murder rates ticking down a bit in 2022 and crime narratives seemingly not having a huge midterm poitical impact, perhaps some modest consgressional reform could still happen in the coming year.

On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here).  It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."  And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.

The judicial branch is the arena in which I am expecting the most action in this new year.  Focusing the courts, we may see in the coming weeks if the Supreme Court is finally ready to address acquitted conduct sentencing enhancments (details here).  Other notable sentencing issues may also make their way to the SCOTUS docket because circuits are split on important topics like deference to the guidelines and application of a key part of the FIRST STEP Act.  Other notable sentencing issues are sure to keep gurgling in district and circuit courts in the year ahead.

But I can most confidently predict judicial branch sentencing action in 2023 because the US Sentencing Commission, which is located in that branch, is finally now fully loaded and is hard at work on potential guidelines reforms.  The Commission has now officially announced that it will have a public meeting on January 12, 2023 with an agenda to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Though we should not expect the USSC to advance amendments on all the topics mentioned in its ambitious list of priorities, we are sure to get some notable and impactful proposals to start the year from the Commission.

Notably, though the USSC's work is primarily focused on the sentencing guidelines, the agency can have real impact on other aspects of the justice system.  This new Forbes article by Walter Palvo, headlined "A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons," highlights Steve Sady's new article in the Federal Sentencing Reporter urging the USSC to "make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences."  Here is an excerpt from the Forbes piece:

I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”

As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms. “It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”

Interesting times as we start a new year.