Sentencing Law and Policy

Lots of (little?) stories in USSC's FY 2023 fourth quarter sentencing data release

Late last week, the US Sentencing Commission released on its website this latest quarterly data report, labelled "4th Quarter Release, Preliminary Fiscal Year 2023 Data Through September 30, 2023."  These new data provide the latest accounting of federal sentencings, and this latest data run seems to reflects the impact of the USSC 2023 guideline amendments.  Technically, the new guidelines did not become effective until November 1, 2023.  But the pending guidelines  — which, inter alia, changed some criminal history rules to benefit defendants — likely explains why Figure 2 shows a decline in the number of sentences imposed over the summer.  I suspect some judges delayed some sentencings until the new guidelines were effective.  Similarly, Figure 3 shows a record high number of variances in the last quarter, likely because some judges went forward with sentencings this summer and gave defendants the benefit of pending guidelines through a variance.

As I have noted before, a big COVID era trend was a historically large number of below-guideline variances, and this trend has now persisted over the last 13 quarters of official USSC data (as detailed in Figures 3 and 4).  I continue to believe this trend is mostly a facet of the different caseload and case mixes.  As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 are especially striking.  These figures show, nearly half of all federal drug sentencings last fiscal year involved methamphetamine (roughly 9000 total), whereas fewer than 1000 crack defendants and fewer than 600 marijuana defendants were sentenced in federal court in FY 2023.

Finally, these fiscal year data provide just another reminder of the scope of the federal sentencing system.  The data show around 63,500 total sentences imposed in FY23, of with 92.5% included an imprisonment term.  These data mean that in an average week, an average of over 1,200 persons receive a federal sentence, and of those over 1,100 are being sentenced to federal prison.  

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

• Vote to Adopt August 2023 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

• Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

"Who Bears the Burden When Prison Guards Rape?"

The title of this post is the title of this new essay authored by Meredith Esser and available via SSRN. Here is its abstract:

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP).  Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years.  In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault.  However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims — in a manner inconsistent with other federal early release provisions — and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden.  For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances.  Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

Were lots of new PRISMs filled in federal court last week as the new § 1B1.13 guideline became law?

The question in the title of this post is mostly designed to try to embrace a new term, PRISM, to refer to federal motions that are typically (and inaptly) called "compassionate release" motions.  Credit goes entirely to Doug Passon, who coins the term in the first part of this latest episode of his Set for Sentencing podcast.  Her explains that PRISM stands for "Prisoner Reduction In Sentence Motion."

Notably, federal law does not anywhere speak of "compassionate release" or making a motion for compassionate release.  Rather, 18 USC § 3582(c)(1)(A) describes the circumstances under which a prisoner can request a judge to "reduce the term of imprisonment."  That statutory section sets forth criteria that are about a lot more than just "compassion," and the US Sentencing Commission's key (and newly amended) guideline, titled "§1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)", also addresses many topics that are not simply about "compassion."  Consequently, I see the term "compassionate release" motion to be an inaccurate term, whereas PRISM is an accurate and memorable acronym for the actual filings that prisoners can now bring directly to courts under the FIRST STEP Act.

Sadly, I fear that a long history of use of the term "compassionate release" in this context might mean that PRISM is not likely going to happen (like fetch, I fear).  But if PRISM has any hope to become a new moniker, now would seem to be the right time in light of the US Sentencing Commission's amended guideline officially becoming law on November 1.  As of that day last week, a lot more prisoners, I suspect, had a lot more opportunities to seek a sentence reduction.  I am not sure if anyone is keeping track of new PRISM filings, but I am sure this new guideline story will be worth watching closely under any name.

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?

This CNBC article reports on the high-profile federal jury convictions handed down this evening.  Here are the highlights with an eye on sentencing prospects:

A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.

Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.

He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”

The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....

Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....

The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.

The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....

Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.

For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried.  But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing.  But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.

But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

Rounding up a few reactions to new federal sentencing guidelines going into effect

As noted here, the new US Sentencing Guidelines officially went into effect today.  This formal legal development prompted a few press pieces that merit a round-up:

From Bloomberg Law, "Significant Amendments to US Sentencing Guidelines Now in Effect"

From FWD.com, "Federal Sentencing Commission Advances Meaningful Criminal Justice Reforms"

From JD Supra, "Good News for White Collar Defendants and Their Lawyers – Recent Changes to the Sentencing Guidelines"

From Marijuana Moment, "Federal Sentencing Commission’s New Marijuana Guidelines Directing Judges To Treat Past Convictions More Leniently Officially Take Effect"

Nov 2023: The new Guidelines are here, the new Guidelines are here!!

Though now nearly a 50-year-old reference, today I still cannot help but think of a silly scene from "The Jerk" in which Steve Martin's character is so excited about the new phonebook arriving, which he think means "things are going to start happening" now.  In the sentencing universe, the new book that arrives on November 1 is the new official revised version of the US Sentencing Guidelines.  And this date is especially exciting because the new Nov 2023 Guidelines are the first substantively new version of the book since 2018 because the US Sentencing Commission was without a quorum for nearly four years. 

Helpfully, the US Sentencing Commission sent out an email yesterday highlighting all the new resources related to the new guidelines.  Here is part of the text and links of this email:

The 2023 Guidelines Manual can now be accessed online in PDF, annotated HTML, and mobile-friendly app formats. Hard copies are en route to Federal Judges, U.S. Probation Officers, Federal Public Defenders, U.S. Attorneys, Assistant U.S. Attorneys, and Commission Advisory Group members. The GPO Bookstore will also soon have hard copies publicly available for purchase.

2023 Annotated Manual

The official online version of the Guidelines Manual includes quick integrated access to guidelines history and reasons for amendments....  Explore the Annotated Manual

2023 Guidelines App

The Guidelines App offers easy on-the-go access to the Guidelines Manual (with add-on features below) through any internet browser — no download or installation necessary.....  Explore the App

2023 Amendments In Brief

Access the 2023 Amendments In Brief for a quick recap of each amendment, including the issue that prompted Commission action and the reasons for the amendment.

I have highlighted some of the biggest ticket items in the new federal sentencing guidelines in a number of prior posts, a few of which are reprinted below.  And because there is surely much to litigate about the new guidelines (especially the criminal history rules which are to be applied retroactively), I expect there will be a number of future posts about the new guidelines.

A few of many prior related posts:

• US Sentencing Commission promulgates numerous consequential new guideline amendments (while defering resolution of other big issues), with big division on compassionate release
• Has the US Sentencing Commission now "overruled" circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction? 
• Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules 
• US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities
• Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

New (opaque) study of federal sentences reports domestic terrorism sentences less severe than international terrorism sentences

This new AP article, headlined "International terror defendants face longer prison terms than domestic counterparts, new study finds," reports on what sounds like an interesting new study of federal sentencing outcomes in a small group of (high-profile) cases.  Unfortunately, the study itself is not yet public and so I can only report on the AP's accounting:

People convicted of crimes related to domestic extremism face far shorter prison terms than those convicted in international terrorism cases, even when the crimes are similar, a new report on the outcomes of hundreds of federal criminal cases has found.

The first-of-its-kind analysis, completed by terrorism researchers at the University of Maryland, was provided exclusively to The Associated Press. It comes after federal officials and researchers have repeatedly identified domestic violent extremists such as white supremacists and anti-government groups as the most significant terror threat to the U.S....

“This research is significant in confirming empirically what many have long argued: international terrorism cases are sentenced more harshly than domestic cases, even when the conduct is the same, and that these disparities are due to a combination of differences in the law and biases in implementing them,” said Shirin Sinnar, a professor at Stanford Law School, who was not involved in the research but reviewed it at the request of the AP.

Researchers at the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism, or START, and its Center for Health and Homeland Security examined federal criminal cases between 2014 and 2019 that were brought against people radicalized in the U.S. who were pursuing political, social, economic or religious goals.

International terrorism cases were defined by the researchers as those in which the defendants had links to or were acting in support of terrorist groups or movements based outside the U.S., while domestic cases involved defendants connected to groups or movements that operate primarily inside the U.S.

The analysis looked at 344 cases, including 118 international cases and 226 domestic cases, and found the disparities are caused by multiple factors, including the charges federal prosecutors choose to file, the laws that are on the books, as well as the sentencing decisions made by judges.

Jan. 6 cases are not included in the analysis, which has not yet been peer reviewed. START’s Michael Jensen, a principal investigator of the study, said 2019 was chosen as a cutoff to ensure final outcomes of even the most complex cases were captured. Still, he said, sentencing gaps in the Jan. 6 cases that he’s analyzed also reflect this disparity. Federal prosecutors have even taken the rare step of appealing the sentences of some Jan. 6 defendants, including leaders of the Oath Keepers and Proud Boys, some of whose sentences were years below what federal sentencing guidelines had laid out.

START’s analysis found wide disparities in prison terms for similar conduct, which were most pronounced in certain kinds of cases. The largest was in cases where defendants plotted violent attacks that ultimately failed or were foiled, where international defendants received an average prison sentence of 11.2 years, compared with 1.6 years for domestic defendants.

For violent cases that led to injuries, domestic defendants received on average 8.6 years, versus 34.6 for international defendants. The disparity was smaller, but still significant, in violent fatal attacks with domestic cases at about 28.8 years and international cases at about 39.2 years....

START controlled for factors already known to contribute to sentencing disparities, such as race, gender, criminal history and the use of so-called sentencing enhancements that increase the possible prison time for certain crimes. Even accounting for these other factors, international defendants still receive harsher punishments on average....

Federal law makes a distinction between international and domestic terrorism. The State Department has formally designated dozens of groups operating abroad as foreign terror organizations and even marginal support to such groups that doesn’t result in violence can be punishable by up to 20 years in prison. There is no comparable designation for domestic extremists such as the Proud Boys, Atomwaffen or other groups with a history of violent plots and acts....

In the cases studied, terrorism-specific charges and sentencing enhancements that increase prison time were disproportionately applied to international defendants. Chief among those is the material support statute that can only be used for cases linked to international terrorist groups; a related statute that may be used for domestic terrorism was rarely invoked. Federal prosecutors used the international material support charge in 50 percent of international cases; it was just half a percent in domestic ones – a single case.

People charged in violent domestic cases also often faced less serious charges not often associated with crimes of terror, like illegal possession of firearms, the study found. The so-called terror enhancement that increases prison time was used in 60 percent of international cases, compared with just 15.4 percent in domestic ones.

George Varghese, a former national security prosecutor, said prosecutors had been hamstrung by how the law treats international terror differently than domestic extremism, but that courts also bear some responsibility. “These domestic terrorists are being treated more like run-of-the-mill criminal defendants and receiving sentences far below those of international terrorism defendants,” he said.

Without access to the actual research/report that is the basis for this AP piece, we are left to wonder about whether the comparisons here are truly apples-to-apples. As the AP piece highlights, there are some formal legal differences here, and I will be especially interested to see if guideline calculations reflect big differentials in these (quite rare) cases.

Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

A week from today, on November 1, 2023, the new US Sentencing Commission's amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works).  Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history.  But there is far more going on with all these amendments than can be readily summarized in this forum.  Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments.  Specifically, from a USSC training event, here is a slideshow that summarizes the USSC's amendment work, and a whole bunch of helpful "Amendment in Brief" documents assembled here provide primers on nine amendments.

As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead.  And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines.  Helpfully, the Commission has created this "Background Information" page to try to address some questions about retroactivity.  But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application. 

I predict questions and litigation in part based on an interesting little document that the USSC posted here titled "Comparison of Retroactive Guideline Amendments."   Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as "Group size" and "Eligible for reduction" under the new criminal history amendments.  In short form, the document estimates that over 85,000 prisoners are in the "Group size" who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction.  In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.

I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon.  I recommend these highly:

"How Zero-Point Offender Change Will Work Prospectively"

"How Zero-Point Offender Change Should Work Retroactively"

Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Regular readers know I have been talking up SCOTUS's first case for oral argument this Term, Pulsifer v. United States, a statutory interpretation case dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  Perhaps because it was the only case on the argument calendar yesterday, the Justice spent almost a full two hours debating the meaning of the word "and" with two capable counsel.  The full oral argument recording and transcript are available here at the SCOTUS website. 

Here are some press discussion of the oral argument in Pulsifer and surrounding realities:

From Courthouse News Service, "Courthouse Rock: Justices play conjunction junction on first day of term"

From The Hill, "Supreme Court opens term with case on prison terms for drug offenders"

From Mother Jones, "Does 'And' Mean 'And'? Or 'Or'? The Supreme Court Will Decide."

From Roll Call, “Congressional conjunction turns Supreme Court argument into grammar class; Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law"

From the New York Times, "On First Day of New Term, Supreme Court Hears Debate Over First Step Act" 

From Slate, "The Supreme Court’s Oddest Pairing Comes out Swinging on Behalf of Criminal Defendants"

Based on a too-quick listen to the full oral argument, I am inclined to guess that this case will end up with a 5-4 vote in favor of the government's proposed statutory interpretation that would restrict the reach of the FIRST STEP Act's expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms.  But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant's reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).  

I suppose I can say with certainty that this case will not be resolved 9-0 and that the ultimate opinions likely will be of great interest to statutory interpretation fans as well as to sentencing fans.  I also would guess that we will get ruling in early 2024, though this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).  Fun times!

Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term

I am excited that the US Supreme Court starts hearing cases this coming Monday to kick off October Term 2023, and I am especially excited that its first case for argument is Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."   I have seen only a couple press previews of the case so far:

From the AP, "The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’"

From Forbes, "Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’"

In addition, Balls and Strikes has published a commentary about the case with a eye-catching headline: "How the Supreme Court Could Undercut the Future of Criminal Justice Reform."

Though I do not see the fate and future of criminal justice reform as fully at issue in Pulsifer, the US Sentencing Commission set forth data earlier this year which suggests that the fate and future of thousands of federal drug defendants will be impacted by Pulsifer.  Specifically, on page 11 of this February 2023 document discussing possible guideline amendments, the USSC set forth this analysis:

Using fiscal year 2021 data, Commission analysis estimated that of 17,520 drug trafficking offenders, 11,866 offenders meet the non-criminal history requirements of the safety valve (18 U.S.C. § 3553(f)(2)–(5)).  Of those 11,866 offenders, 5,768 offenders have no more than one criminal history point and would be eligible under the unamended pre-First Step Act criminal history requirement.  Under a disjunctive interpretation of the expanded criminal history provision, 1,987 offenders would become eligible.  The remaining 4,111 offenders would be ineligible.  In comparison, under the Ninth Circuit’s conjunctive interpretation of the expanded criminal history provision, 5,778 offenders would become eligible.  The remaining 320 offenders would be ineligible.

I read this data analysis to mean that in a typical year, nearly 4000 additional federal drug defendants could benefit from the more defendant-friendly interpretation FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (in other words, if "and" means "and" and not "or").  Of course, not all defendants are subject to a significant statutory mandatory minimum term (and some avoid such a term by providing substantial assistance), but the Commission's proposed guideline amendment creates a guideline reduction that makes the safety value functionally significant to every drug defendant.

In addition to helping thousands of federal drug defendants in future cases, a pro-defendant ruling by the Supreme Court could potentially help thousands of federal drug defendants currently in prison.  Given that the FIRST STEP Act reforms have been applicable since Dec 2018, and that a number of circuits rejected the more defendant-friendly interpretation (finding that "and" really means "or" here), I have speculated that perhaps as many as 10,000 or more persons now serving time in federal prison for drug offenses might have a claim that they would have benefitted, and now should benefit, from the defendant-friendly interpretation (though there may be, of course, procedural barriers for any prisoners seeking to secure relief from a positive Pulsifer SCOTUS ruling).

I suspect we will get a sense of the Justices' thinking about this and/or statutory interpretation issue during oral argument on Monday, and I am already excited to have a SCOTUS sentencing oral argument to listen to next week.

New US Sentencing Commission report covers "Federal Escape Offenses"

The US Sentencing Commission this morning released this new 30+-page report titled simply "Federal Escape Offenses."  This USSC webpage provides a summary and key findings, and here and highlights from the highlights:

This new publication expands upon the Commission’s previous research on federal escape offenses. In this report, the Commission combines data it regularly collects with data from a special coding project to provide a deeper understanding of escape offenses and the individuals who commit those crimes.  The report provides the characteristics of individuals who commit escape offenses, then chronologically examines their criminal histories before the instant offense through their alleged criminal behavior while on escape status. Next it provides information on their subsequent sentencing.  Finally, this report examines their criminal behavior after being released into the community by the recidivism rates of a cohort of individuals released from federal custody in 2010.

• Escape offenses accounted for less than one percent (0.4%) of all federal offenses between fiscal years 2017 and 2021.

• Individuals sentenced for escape offenses had extensive and serious criminal histories....

• Most federal escapes were from non-secure custody. The majority (89.0%) of individuals escaped from a Residential Reentry Center (i.e., a halfway house)....

• Nearly all (99.2%) individuals sentenced for an escape offense received a sentence of imprisonment. The average term of imprisonment was 12 months.

• Nearly two-thirds (65.0%) of individuals sentenced for an escape offense were sentenced within the guideline range for their escape crime, compared to 40.2 percent of all other federally sentenced U.S. citizens.

• The majority (85.7%) of individuals sentenced for an escape offense and released in 2010 were rearrested during an eight-year follow-up period, which was higher than individuals sentenced for any other type of federal offense.  By comparison, one-half (49.2%) of other individuals released in 2010 were rearrested during the same time period.

  • Individuals sentenced for escape offenses were rearrested sooner after release compared to other sentenced individuals. Their median time to rearrest was ten months, compared to 19 months for the remaining 2010 cohort.

US Sentencing Commission releases latest detailed "Compassionate Release Data Report" (with first data since proposed guideline amendment)

I just noticed that the US Sentencing Commission yesterday published this updated compassionate release data report, and this latest  one provides data on sentence reduction motions through June 30, 2023.  As I have noted with a prior data report, there are lots and lots of notable data points about how and where these motions are brought and resolved throughout this data report.  Interestingly, though some cumulative data is provided at the start of this data report, the vast majority of the report just provides particulars for grants and denials of compassion release for the period from October 1, 2022, through June 30, 2023 (which comprises the first three quarters of Fiscal Year 2023 for the USSC).

Critically, near the middle of Fiscal Year 2023, the US Sentencing Commission officially voted to amend the so-called compassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprisonment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  I blogged here and here about the Commission's promulgation of its amendment of § 1B1.13 in early April 2023.  The amendment was formally submitted to Congress in late April 2023, but does not become law until November 1, 2023.  Nevertheless, this data run suggests there was a small spike in the filing and granting of sentence reduction motions in May and June 2023.  This may just be a bit of statistical noise, though I am inclined to guess that the Commission's official vote on its new guideline may have contributed somewhat to the small uptick in the number of sentence reduction motions filed and granted.

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

Effective coverage of particulars of First Step Act and guideline amendment implementation

I have frequently flagged Walter Pavlo's work at Forbes because he always effectively covers lots of the important nitty-gritty in the implementation of various federal sentencing and corrections rules and policy.  And over the past week, he has two more important pieces in this space, which I will cover with links and full headlines:

"What The US Sentencing Commission’s Decision Means For First Time Offenders: The US Sentencing Commission recently passed a motion to allow a 2 point reduction against the Federal Sentencing Guidelines. The effect could mean freedom for many."

"Bureau Of Prisons’ Challenges With First Step Act Release Dates: The Federal Bureau of Prisons has struggled to implement the First Step Act and one big problem still persists ... predicting when someone will leave prison."

Both of these pieces serve as new reminders of the old aphorism, "The devil is in the details."

Severe federal sentences for Proud Boys and other Jan 6 defendants generating notable commentary

The lengthy federal prison sentences recently given to Proud Boy leaders and others — eg, 22 years for Enrique Tarrio, 18 years for Ethan Nordean, 17 years for Joe Biggs — has generated a lot of intriguing commentary from a lot of intriguing sources.  Here are some pieces reporting on notable comments and some pieces that are the notable comments:

From Florida Politics, "Ron DeSantis floats ‘pardons and commutations’ after Proud Boy sentenced to 22 years"

From The Messenger, "Proud Boys to Argue ‘Trial Tax’ Was Imposed on Them After Rejecting Plea Deals"

From the National Post, "J.D. Tuccille: The injustice of jailing Jan. 6 rioters for 20 years"

From the New York Times, "DeSantis and Ramaswamy Call Proud Boys’ Sentences ‘Excessive’ and ‘Wrong’"

From Northeastern Global News, "Leaders in the Jan. 6 attack on the Capitol were sentenced to about 20 years in prison. Was that fair?"

From USA Today, "'Trial tax': Proud Boys members complain their long prison sentences punish them for demanding a trial"

From the Washington Post, "They confronted Proud Boys but don’t celebrate their prison sentences"

From WLRN, "Enrique Tarrio's mother says her son was a 'political pawn'"

"Extraordinary Punishment: Conditions of Confinement and Compassionate Release"

The title of of this post is the title of this notable new article authored by Meredith Esser and now available via SSRN.  Here is its abstract:

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills.  But civil rights litigation under the Eighth Amendment — the most common vehicle through which people seek to redress these harms — presents significant practical and doctrinal barriers to incarcerated plaintiffs.  Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials.  Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering.  For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.

At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied.  However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.

In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment.  These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences.  Given the challenge of redressing harms under the Eighth Amendment, this Article argues that the expansion of compassionate release ECRs to encompass harmful conditions of confinement makes doctrinal sense and allows for a more appropriate remedy to harms done in prison than traditional civil remedies.

Notable (and notably little) early coverage of USSC's decision to make new criminal history rules retroactive

As noted in this post, last week the US Sentencing Commission voted to make its new criminal history amendments retroactive.  According to the USSC's calculations, this decision will enable roughly 18,500 federal prisoners to obtain reduced sentence (and may lead to tens of thousands of additional federal prisoners to seek a reduction.  And yet, this big and impactful federal sentencing development has seemingly received almost no significant attention in the media or anywhere else that I have seen. 

Specifically, I have only seen two media pieces on the decision:

From Law360, "Sentencing Commission Backs Retroactive Cuts For 1st Timers"

From Forbes, "Sentencing Commission OKs Retroactive Reduction For Many Inmates"

Helpfully, Thomas Root over at LISA Foundation has a pair of posts providing some more coverage and context: 

• Criminal History Guidelines Going Retro By Narrowest of Margins
• Mr. Explainer’s “How-to” On Applying For Retroactivity

I suspect that there may be considerable additional public and private discussions of the USSC's consequential actions among various criminal justice insiders, but I am still somewhat surprised that major action by the leading federal sentencing agency has not generated broader discussion.  Of course, the USSC's actions do not allow reduced sentences and federal prisoner releases to become effective until February 2024, so maybe the absence of an immediate impact is a small part of this story.  (But, notably, there is news of a kind of delayed/uncertain action coming from another federal agency today (basics here) that seems certain to generate nearly endless attention.)

US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities

The US Sentencing Commission conducted an interesting and eventful public meeting earlier this afternoon (which can be watched here).   This new USSC press release provides the highlights in its first paragraph:

Today the Commission, by a majority vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text).  The Commission also adopted its next set of policy priorities that include, among other things, reviewing and potentially amending how the guidelines treat acquitted conduct for purposes of sentencing as well as assessing the degree to which certain Bureau of Prisons practices are effective in meeting the purposes of sentencing. 

Here are more of the details from the press release on what the criminal history retroactivity piece of the story means:

Equipped with a quorum of commissioners for the first time since 2018, the Commission voted in April to promulgate amendments to the federal sentencing guidelines — including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules.  Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals.

The Commission voted to delay implementation of any order granting such reduced sentences to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families.  We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”

Part A of Amendment 821 limits the overall criminal history impact of “Status Points” at §4A1.1. Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at §4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.

Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals.  Applying these changes retroactively will increase fairness in sentencing.  At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
   
• 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

Today’s vote concludes two months of deliberations and the first amendment year of policy work for the commissioners, who were all confirmed last August.  As part of its deliberations, the Commission received expert testimony and public comment from a wide spectrum of stakeholders, including senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated individuals.

This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

As for the new USSC policy priorities, here is more on that part of this dynamic story:

Today, the Commission also finalized policy priorities for the amendment year ending May 1, 2024.  In light of the 40th anniversary of the Sentencing Reform Act (SRA), the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the SRA.

Among these issues, the Commission will work to assess the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).  The Commission will also compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.

The Commission will also review and potentially amend how the guidelines treat acquitted conduct for purposes of sentencing.  The Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, three Justices supported the denial to allow the Commission more time to address the issue.  “Last year’s amendment cycle was busy and abbreviated.  The Commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” said Judge Reeves.

The Commission will continue to examine the career offender guidelines, including updating the data analyses and statutory recommendations made in the Commission’s 2016 report to Congress entitled Career Offender Sentencing Enhancements.  The Commission will also continue its consideration of alternative approaches to the “categorical approach” through workshops convened to discuss the scope and impact of the career offender penalty enhancements.

The Commission will further continue its research agenda through examination of various issues, including methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

WOWSA. That is a whole lot, and I hope to be able to cover some of the particulars of both the retroactivity decision and the policy priorities in more detail in the coming days and weeks.  For now, I will just say kudos to the US Sentencing Commission for doing all this hard and important work in a transparent and clear manner.

US Sentencing Commission posts over 450 pages of public comment on proposed priorities

As reported here back in mid-June, the US Sentencing Commission through this Federal Register Notice provided "notice identifying the possible policy priorities that the Commission expects to focus on during the amendment cycle ending May 1, 2024."  That notice provided that public comment on these possible policy priorities could be submitted to the Commission on or before August 1, 2023.  There was clearly a whole lot of public comment submitted, as the Commission has now posted here a "Sample of Public Comment Received on Proposed Priorities" that appearing in this 470-page pdf.  Here i how the Commission explains this big document:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations.

Here is how the Commission organizes the comments thematically on its webpage:

View submissions by proposed priority:

1. Bureau of Prisons Practices
2. Alternatives to Incarceration and Court Diversion Programs
3. Simplification/Structural Reform
4. Case Law Relating to Guideline Commentary
5. Career Offender Guideline/Categorical Approach
6. Youthful Offenders
7. Crime Legislation
8. Circuit Conflicts
9. Miscellaneous Guideline Application Issues
10. Research Topics
11. Other Suggested Priorities

A couple prior related posts:

• US Sentencing Commission releases fascinating "possible policy priorities that the Commission expects to focus on" in next amendment cycle 
• US Sentencing Commission notices hearing to vote on policy priorities and retroactivity of criminal history amendments 

After another federal indictment, another set of federal sentencing issues for former Prez Trump

It is barely 48 hours since former Prez Donald Trump was formally indicted on four new federal charges and only a few hours since his "not guilty" plea.  But, as revealed by the pieces below, there has still been plenty of time for various outlets to start talking up some sentencing issues:

From the AP, "The judge assigned to Trump’s Jan. 6 case is a tough punisher of Capitol rioters"

From Newsweek, "Donald Trump Conviction Could Be 'Death Sentence'"

From Politico, "641 years behind bars? No, but Trump’s risk of prison is real."

From Set for Sentencing, "The 3rd Trump Indictment (Sentencing Guidelines): Everything Nowhere All at Once"

From the Washington Post, "Is Trump going to jail? Here’s how much prison time he could face."

For all sorts of reasons, I am quite disinclined to get too focused on potential guideline ranges given that the sentencing of an elderly former president raises so many unique and significant 3553(a) sentencing issues.  And, of course, we are a long way from any convictions, let alone sentencings.  But, as always, folks are more than welcome to provide sentencing takes (or other takes) in the comments.

Some prior related post:

• Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range? 
• Notable general and specific accountings of former Prez Trump's federal sentencing prospects
• Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty 

US Sentencing Commission notices hearing to vote on policy priorities and retroactivity of criminal history amendments

As reported on this official webpage, "the United States Sentencing Commission [has scheduled] a public meeting ... for Thursday, August 24, 2023."   This meeting will have the following agenda:

• Report of the Chair
• Possible Vote to Adopt April 2023 Meeting Minutes
• Possible Vote on Final Policy Priorities for 2023–2024
• Possible Vote on Retroactivity of Parts A and B of the 2023 Criminal History Amendment

The last two agenda items are especially important and could prove quite impactful. Here are some prior posts that partially explain why and how:

• Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules
• US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules
• Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines
• Remarks of Chair of US Sentencing Commission suggests his affinity for retroactivity of new criminal history guidelines 
• US Sentencing Commission releases fascinating "possible policy priorities that the Commission expects to focus on" in next amendment cycle

Remarks of Chair of US Sentencing Commission suggests his affinity for retroactivity of new criminal history guidelines

A series of meetings kept me from watching all 6+ hours of the US Sentencing Commission's public hearing yesterday considering the possible retroactivity of the USSC's new amendments to the criminal history guidelines.  Helpfully, the full Commission hearing is now archived on this USSC webpage (though I will readily admit that a distinct event is now drawing my attention.) 

But yesterday I was able to hear these opening remarks by Judge Carlton W. Reeves, the Commission's Chair.  Those remarks certainly suggested to me that the Chair is supportive of retroactivity application of the USSC's new criminal history guidelines.  These passages in particular caught my attention (emphasis in original, footnotes omitted):

The purpose of today’s hearing speaks to our core mission of crafting sentencing policy that is fair and evidence-based.  In May, we unanimously voted to create policies that will change how criminal history affects the sentences of defendants.  Reflecting the latest research on effective criminal justice practices, these policies will ensure defendants receive more just and evidence-based sentences in the years to come. Now, we must decide whether people incarcerated under the old policies should get a chance to have their sentences revised in line with our new one. In other words, today’s testimony will help us decide whether to apply our criminal history amendments to the sentencing guidelines retroactively.

Congress has told us to make this decision by “examining a wide spectrum of views.” To that end, we asked the public to provide us with their input. We received hundreds of comments from senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated people.... We heard them say this decision on retroactivity is our chance to “correct past wrongs and address the systemic disparities that have plagued our society for far too long.” We heard them say our decision must weigh the needs of “victims and survivors.” And we heard them say our decision can “injec[t] hope into the lives of those whom will be eligible.”...

I want to give our witnesses and the public some insight into how we Commissioners will make our decision about retroactivity. Many of the witnesses speaking today will talk about the costs of any decision we make.  Let me reassure you: we take pains to consider all these costs.  We consider the time judges and their staffs will have to expend dealing with filings for reduced sentences.  We consider the additional resources expended on re-entry and supervision.  But we also consider the financial costs of continuing to incarcerate someone, which stands at roughly $44,000 per person per year with the BOP -- which is $40,000 more than the annual cost of supervision, and which increases year after year after year.  And we consider a cost that has little to do with docket sizes or dollars and cents: the moral price of incarcerating someone for longer than is necessary. As my former colleague Judge George Hazel so aptly put it, “Liberty is the norm; every moment of incarceration should be justified.” Whatever decision the Commission makes on retroactivity, I promise that it will reflect every cost, every benefit, and every perspective we hear about today.

The Chair is only one of seven votes on the Commission, but these comments reinforce my previous guess that the Commission is likely to new criminal history rules fully retroactive.  Yet there still could be devil in the details.

Some prior related posts:

• Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules
• US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules
• US Sentencing Commission schedules public hearing to consider retroactivity of amendments to criminal history rules 
• Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

US Sentencing Commission releases more "Quick Facts" data on wide range of topics

I have been noticing in recent weeks that the US Sentencing Commission has been releasing a lot more new short data reports in the form of its "Quick Facts" publications. (Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  Here is just a sampling of recent postings by the USSC on this  "Quick Facts" page:

• NEW  Career Offenders (July 2023)
• NEW  Non-U.S. Citizens (July 2023)
• NEW  Women in the Federal Offender Population (July 2023)
• NEW  Native Americans in the Federal Offender Population (June 2023)

• NEW  Methamphetamine Trafficking (June 2023)
• NEW  Powder Cocaine Trafficking (July 2023)
• NEW  Crack Cocaine Trafficking (June 2023)
• NEW  Heroin Trafficking (July 2023)
• NEW  Marijuana Trafficking (July 2023)
• NEW  Oxycodone Trafficking (July 2023)

• NEW  Sexual Abuse (June 2023)
• NEW  Child Pornography (June 2023)
• NEW  Illegal Reentry (June 2023)
• NEW  Alien Smuggling (June 2023)

There are so many notable and interesting little data items in these little documents, and I welcome folks highlighting any interesting data points in the comments.  I am eager to flag the continued drop in federal prosecutions for marijuana trafficking, as the FY 2022 shows only 806 persons being federal sentenced for this offense.  (I co-authored an article a few years ago looking at federal marijuana data, titled "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition," which noted that a decade ago nearly 7000 persons were being federal sentenced for marijuana trafficking.) 

Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

In this April post, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines.  The big ticket items in the proposed amendments concern "status points" and "zero-point offenders."  As detailed here, after proposing these criminal history amendments, the Commission sought comment on whether it should make the key parts "available for retroactive application." 

As detailed in this May post, the USSC thereafter published on its website this 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is how I roughly summarized this analysis: "it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality."

As flagged in this June post, the Commission has scheduled a public hearing for Wednesday, July 19, 2023, in order "to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment."  As the USSC explained in its hearing notice, "because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants."  

When announcing the public hearing, the Commission also here released a massive Compilation of Public Comment.  Running over 250 pages, these public comments are quite interesting with a wide range of persons making a wide range of arguments both in favor and against retroactivity of these criminal history amendments.  For a slightly more efficient overview of all the pros and cons, the Commission has now posted here the written testimony of the 15 witnesses scheduled to testify all the full-day USSC hearing starting at 9am on Wednesday, July 19.

I am inclined to guess that the US Sentencing Commission is inclined to make its new criminal history rules fully retroactive, but I do not think any outcome is a given.  Notably, the Justice Department's statement "opposes retroactive application of both Parts A and B of the criminal history amendment," and, in case of a retroactive vote, has requested "that the Commission delay implementation of retroactivity by at least nine months to allow the Bureau of Prisons and the U.S. Probation Office sufficient time to properly prepare and coordinate reentry services for eligible offenders."  Both the particulars and process for retroactivity may be widely debated during the hearing. 

After latest acquitted conduct dodge, will SCOTUS keep dodging the deep circuit split over guideline commentary?

In my recent "inartful dodgers" series (linked below), I bemoaned the Supreme Court's curious suggestion that the Sentencing Commission should first address acquitted-conduct sentencing policy issues before it took up broader acquitted-conduct constitutional issues.  That series got me to wondering whether we now ought also now expect the Supreme Court to keep dodging another important federal sentencing issue which has produced a deep circuit split, namely the weight to be given to guideline commentary.  This effective press piece about a recent Tenth Circuit ruling in this area provide the background:

When Congress created the U.S. Sentencing Commission in 1984, it intended to reduce disparities in criminal sentencing at the federal level by developing a set of guidelines, which trial judges now reference during sentencing. However, the guidelines are also accompanied by commentary — notes that clarify and expand upon the meaning of the guidelines.  In recent years, federal appeals courts have reached different conclusions about when judges should apply the commentary and when they should ignore it.

Last month, the federal appeals court based in Denver weighed in, deciding it is appropriate to apply the sentencing commentary unless it runs contrary to federal law or the guidelines themselves. "Neither the guideline provisions nor the commentary has any binding legal authority to begin with," clarified Judge Gregory A. Phillips in the June 23 opinion from the U.S. Court of Appeals for the 10th Circuit.  Regardless, he added, there is "nothing tyrannical about judicial deference to the commentary."

The effect of the decision is to give greater weight to the Sentencing Commission's annotations to its guidelines, which, in the case of Quindell Tyree Maloid, added at least 14 months to his criminal sentence.... 

For decades, the Supreme Court held that the commentary was "authoritative" unless contradicted by federal law or the guidelines themselves.  Then, in 2019, the court issued Kisor v. Wilkie, finding a government agency's interpretation of its own rules does not deserve a court's deference unless the rule is "genuinely ambiguous."  Although Kisor involved the U.S. Department of Veterans Affairs, federal courts soon began to reconsider how to treat the Sentencing Commission's interpretation of its guidelines through the commentary.

For some appeals courts, the answer was that Kisor applied to the commentary.  "Now the winds have changed," wrote Judge Stephanos Bibas of the Philadelphia-based Third Circuit. "In Kisor, the Supreme Court awoke us from our slumber of reflexive deference: Agency interpretations might merit deference, but only when the text of a regulation is truly ambiguous."

The federal government has also accepted that Kisor requires judges to examine sentencing commentary more critically.  In November 2022, the solicitor general's office acknowledged in a filing to the Supreme Court that Kisor provides the "authoritative standards for determining whether particular commentary is entitled to deference."

However, the 10th Circuit was not convinced....  Phillips, in the panel's opinion, noted that the Kisor decision pertained to executive branch agencies, not the Sentencing Commission. "That’s a critical distinction," he wrote.  The Sentencing Commission is not a policymaking body, but an entity providing guidance to judges, Phillips elaborated. Judges retain discretion to deviate from the sentencing guidelines, and Congress can exercise its power to reject any amendments the Sentencing Commission proposes....

Attorney Adam Mueller said the Supreme Court will potentially have to resolve the split between those appeals courts that still permit judges to lean on the sentencing commentary and those that have now adopted the Kisor decision's more skeptical approach.... Earlier this year, the Supreme Court turned down an appeal that sought to clarify how lower courts should now treat the sentencing commentary.

The Tenth Circuit's ruling in US v. Maloid is available at this link, and footnote 12 of the panel opinion details the deep circuit split on this important issue of guideline interpretation and application:

By our count, four circuits have held that Kisor abrogated Stinson. E.g., United States v. Nasir, 17 F.4th 459, 470-71 (3d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476, 484-85 (6th Cir. 2019); United States v. Castillo, 69 F.4th 648, 657-68 (9th Cir. 2023); United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023) (en banc). The Fifth Circuit has granted an en banc rehearing to resolve the issue. United States v. Vargas, 35 F.4th 936 (5th Cir.), reh’g en banc granted, 45 F.4th 1083 (5th Cir. 2022). The Fourth Circuit has developed an intra-circuit split in dueling decisions within two weeks of each other. Compare United States v. Campbell, 22 F.4th 438, 444-45(4th Cir. 2022), with United States v. Moses, 23 F.4th 347, 357 (4th Cir. 2022). The First Circuit refused to overrule prior precedent relying on Stinson under the law-of-the-circuit doctrine. United States v. Lewis, 963 F.3d 16, 24-25 (1st Cir. 2020).  Other circuits have continued to apply Stinson without much discussion of Kisor. E.g., United States v. Richardson, 958 F.3d 151, 154 (2d Cir. 2020); United States v. Smith, 989 F.3d 575, 583-85 (7th Cir.), cert. denied, 142 S. Ct. 488 (Nov. 15, 2021); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Jenkins, 50 F.4th 1185, 1197 (D.C. Cir. 2022).

Though the Supreme Court is already slated to address agency deference issues in a case during its next Term, the Sentencing Commission is a unique agency as noted by Judge Phillips.  Consequently, whether and how deference should be shown to the Sentencing Commission's guideline commentary is not an issue that can be readily resolved in other cases without direct SCOTUS consideration of this precise issue. 

However, the Sentencing Commission arguably could just move all of its guideline commentary directly into the guidelines.  Doing so would largely moot the deep circuit split over how much weight should be given to guideline commentary (because there would, technically, no longer be any guideline commentary).   And, notably, in its latest statement of proposed priorities, the Commission has stated this it is "continu[ing] its multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary." 

So, if the Supreme Court's instinct is just to inartfully dodge hard sentencing issues based on the hope the Sentencing Commission will take care of matters, we probably should not expect a cert grant on Kisor's role in guideline application anytime soon.  

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
• Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? 
• Inartful dodgers: no constitutional substance in Justice Sotomayor's cert denial statement in acquitted conduct cases 
• Inartful dodgers: do our constitutional values suggest there is "no relevant difference ... between acquitted conduct and uncharged conduct"? 

A few prior posts on Kisor guideline issues:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Double issue of Federal Sentencing Reporter devoted to "Frankel at 50" now online

Regular readers likely recall some of my posts from earlier this year discussing the event in New York City this past April titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."    As mentioned in a prior post, though this event was only in-person, we also solicited a big set of article for a "Frankel at 50" special double issue of the Federal Sentencing Reporter.  I am now pleased to report that this special double issue has now been published, and I am so proud of what can be found inside.

This new "Frankel at 50" FSR issue has more than a dozen original articles from many judges and leading academics and advocates, a handful of great past FSR pieces from leading federal judges that very much merited reprinting in this collection, and also a set of archival materials that capture the voice of Judge Marvin Frankel in various ways.  Professor Steve Chanenson and I authored an introduction to the collection, titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order," and here is its abstract:

Fifty years ago, Judge Marvin E. Frankel published a slim volume that has had an outsized and enduring impact on the criminal justice system in the United States and around the globe.  In Criminal Sentences: Law without Order, Frankel captured the public’s imagination and the legal establishment’s attention in a way that is scarcely comprehensible in today’s world full of copious (but typically unheeded) criminal justice scholarship and policy advocacy.  Judge Frankel’s work serves as a kind of a sentencing Rorschach Test for those involved in sentencing discussions and debates past and present. Because the book is so rich, and because the text is both a reflection of its times and still timeless, people can — and do — see lots of different things in Criminal Sentences: Law without Order.  This essay, stemming from an April 2023 conference commemorating the book’s golden anniversary, explores the role that Frankel and his book had in shaping modern sentencing discourse and what lessons they offer for the future.

Check it all out.

US Sentencing Commission schedules public hearing to consider retroactivity of amendments to criminal history rules

I received an official email today from the US Sentencing Commission providing "Notice of Public Hearing" to be on Wednesday, July 19, 2023 from  9:00 AM - 3:00 PM (EDT).  Here is the topic:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing of the Commission is scheduled for Wednesday, July 19, 2023, from 9:00 a.m. - 3:00 p.m. (EDT).  The hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby). 

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment. Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.

The hearing will also be livestreamed and recorded at this link.

Related Materials: Public Comment and Impact Analysis

The Commission requested public comment on this issue and received thousands of submissions. The comment period has now closed. On May 15, 2023, the Commission also published an analysis of the impact of the amendment if parts A and B are made retroactive.

• View Public Comment
• View Impact Analysis

Notable sentencing memos in high-profile Ohio political corruption case (showcasing nuttiness of guidelines)

The Buckeye State was the crime scene for a notable case of political corruption involving our House Speaker Larry Householder.  Back in March, Householder and his co-defendant were convicted after trial on one count of conspiracy to participate in a racketeering enterprise involving bribery and money laundering.  Next week brings sentencing on a single charge with a 20-year statutory maximum sentence, and these local article highlight that the prosecution and defense have very different visions of the proper sentence:

"Feds say Householder should get 16-20 years in prison: Liken him to mob boss in court filing"

"Householder asks for 12-18 month sentence as feds seek 16-20 years"

Especially with the prosecution seeking a sentence up to the statutory maximum prison term of 20 years and the defense seeking a sentence as low as just one year, one might hope that the US Sentencing Guidelines would help guide the federal sentencing judge toward an appropriate sentence.  But, highlighting what I will call the nuttiness of the guidelines, the Government's sentencing memo contends that "Householder’s guideline range recommends life imprisonment."  That would be, of course, an illegal sentence because the stat max is just 20 years. 

Moreover, as discussed in the defendant's sentencing memo, "Probation calculated the total offense level under the advisory Guidelines [to be] Offense Level 52" even though the highest possible offense level under the guidelines is 43.  In other words, for a crime committed by a 64-year old first offender, the guidelines somehow score way above the statutory maximum sentence and way above the guidelines' own defined offense seriousness ceiling.

There are various factors that contribute to the guidelines being especially nutty in this case, and the fact that the guidelines are advisory serves to soften the import and impact of their nuttiness.  I have linked the sentencing memos not only because they make for interesting reads, but also because they highlight how a discourse and debate over the application of the 3553(a) statutory sentencing factors makes far more sense than a discourse and debate over the application of the guidelines that get used in a political corruption case like this one.   

US Sentencing Commission releases fascinating "possible policy priorities that the Commission expects to focus on" in next amendment cycle

The US Sentencing Commission has today provided federal sentencing fans a lot to thinking about right before this coming long weekend.  Specifically, through this new Federal Register Notice, the Commission "provides this notice identifying the possible policy priorities that the Commission expects to focus on during the amendment cycle ending May 1, 2024."  The preamble and the particulars are fascinating, and here are just some of what I consider high points:

While continuing to address legislation or other matters requiring more immediate action, the Commission has decided to limit its consideration of specific guidelines amendments for this amendment cycle. Instead, in light of the 40th anniversary of the Sentencing Reform Act, the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the Sentencing Reform Act. See 28 U.S.C. 991(b)(2). The Commission expects to continue work on many of these priorities beyond the upcoming amendment cycle.  The Commission invites comment on the proposed priorities set forth below, along with any additional priorities commenters believe the Commission should consider in the upcoming amendment cycle and beyond.... 

The proposed priorities for the amendment cycle ending May 1, 2024, are as follows:

(1) Assessing the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. 3553(a)(2) and considering any appropriate responses including possible consideration of recommendations or amendments.

(2) Promotion of court-sponsored diversion and alternatives-to-incarceration programs by expanding the availability of information and organic documents pertaining to existing programs (e.g., Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program) through the Commission’s website and possible workshops and seminars sharing best practices for developing, implementing, and assessing such programs.

(3) Examination of the Guidelines Manual, including exploration of ways to simplify the guidelines and possible consideration of amendments that might be appropriate.

(4) Continuation of its multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary....

(10) Further examination of federal sentencing practices on a variety of issues, possibly including: (A) the prevalence and nature of drug trafficking offenses involving methamphetamine; (B) drug trafficking offenses resulting in death or serious bodily injury; (C) comparison of sentences imposed in cases disposed of through trial versus plea; (D) continuation of the Commission’s studies regarding recidivism; and (E) other areas of federal sentencing in need of additional research.

(11) Additional issues identified during the comment period.

The notice specifies that "comment should be received by the Commission on or before August 1, 2023. The Commission is again allowing both mail and electronic submission of comments.

I am a bit surprised to not see acquitted conduct enhancements as one of the possible priorities, though arguably an examination of differences between "sentences imposed in cases disposed of through trial versus plea" would necessarily include aspects of acquitted conduct sentencing. More generally, I read this overall notice as an indication that the Commission is prepared to take a broad look at a lot of broad issues, and so I suspect very few matters are outside of the USSC's vision for the coming guideline reform cycle.

Exciting times!

Notable general and specific accountings of former Prez Trump's federal sentencing prospects

In this post from late last week, I asked "Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?".  In the comments to that post, one helpful reader did basic calculations to suggest Donald Trump would be looking at a guideline range of at least 6.5 years and likely at least 9 years in federal prison.  I presume such a calculation in part accounts for why Prof Jonathan Turley is quoted in this new Hill piece as saying "All the government has to do is stick the landing on one count, and he could have a terminal sentence.  You’re talking about crimes that have a 10- or 20-year period as a maximum."

As those who follow my blogging about acquitted conduct know, Prof Turley is wise to not that the government only needs to "stick the landing on one count" in order to have all of Trump's conduct, including any and all conduct associated with any acquitted counts, used in his sentencing guideline calculation.  But, of course, any guideline calculation only serves as, in the words of the Supreme Court, "the starting point and the initial benchmark" for federal sentencing now that the guidelines are advisory.  The sentencing judge will need also to consider all the other statutory 3553(a) factors, including the "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  (To work though how all the 3553(a) factors should apply to a former President starts to make my head hurt.)

Notably, others are now hard at work at possible guideline calculations based on the Trump indictment.  Specifically, over at Just Security, David Aaron has this lengthy new post titled "How Much Prison Time Does Former President Trump Face?  Applying the U.S. Sentencing Guidelines."  Sentencing fans should check out the full post for the specific calculations, but here is how the post starts:

Now that the public has seen the current list of federal charges against former President Donald Trump, there is a long road ahead. If the defendant is ultimately convicted, that road will lead to sentencing.  The Espionage Act charges the defendant faces carry a maximum prison sentence of ten years.  The Tampering (and related Conspiracy) and Concealment charges each carry a maximum prison sentence of twenty years.  The Scheme to Conceal and False Statements charges each carry a maximum prison sentence of 5 years.  Of course, in any criminal case, numerous factors affect the sentence, and focusing on the statutory maximums can be misleading.  Federal law, specifically 18 U.S.C. § 3553, directs courts to impose a sentence based on a list of considerations.  The U.S. Sentencing Commission issues Sentencing Guidelines to assist courts and promote consistent application of criminal law.  Sentencing trends in similar cases can provide reference points, but only if similar cases exist.  This quick note gives an idea of how a sentence would be calculated, with the caveat that issues such as sentencing on multiple counts of conviction, related conduct, and new factual developments could arise.

Prior related post:

• Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range? 

UPDATE:  Another accounting of how tocan count up former Prez Trump's guideline sentencing range can be heard via Doug Passon's Set for Sentencing podcast in this new episode titled "Reality Check: Unpacking the Trump Indictment."  As explained in this show notes: "IN THIS EPISODE: Updates to the guideline calculations now that we have a better picture of the alleged conduct; Comparing Trump's case to Reality Winner; Other musings on the inner workings of the federal criminal system."

US Sentencing Commission releases FY 2023 second quarter sentencing data

Last week, the US Sentencing Commission released on its website this latest quarterly data report setting forth the "2nd Quarter Release, Preliminary Fiscal Year 2023 Data Through March 31, 2023."  These new data suggest that persisting impacts of COVID era developments are still echoing through federal sentencing caseloads.  For example, as reflected in Figure 2 of this data report, while the year prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the "new normal" now seems to be 16,000 total federal cases sentenced each quarter (with a decline in immigration cases primarily accounting for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large percentage of below-guideline variances being granted, and this trend has now extended over the last 11 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  Over the last two quarters, the official data show that only 42.7% of all federal sentences are being imposed "Within Guideline Range."  This number is not historically low, but it continues the modern statistical reality that considerably more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

Among other interesting data and stories within the data, I continue to be struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest two quarters, that nearly 47% of all federal drug sentencings involved methamphetamine and that the fentanyl caseload has recently grown considerably.  (In FY 21, less than 10% of the drug sentencing caseload involved fentanyl; for the first half of FY 23, the fentanyl caseload is over 16%.) Still, the average sentence for all the meth cases is over eight years in prison, whereas the average for all the other drugs is under six years.  As I have put it before, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, meth defendants than anyone else. 

Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?

In one of my early articles, I discussed at length the challenges for defense attorneys presented by the intricacies of federal sentencing law.  As I explained:

From the very outset of representation, a defense attorney needs to assess the range of possible trial and sentencing outcomes for his client in order to properly craft an effective defense strategy and evaluate the prospects for striking a beneficial plea bargain.  In the federal system, this not only entails basic investigation concerning the defendant’s guilt, but also requires counsel to make an initial assessment of the defendant’s possible sentence under the Federal Sentencing Guidelines.  

This old article came to mind this morning as I contemplated whether to do a post about reports that former Prez Donald Trump is now facing a multi-count federal indictment related to his handling of classified documents.  Though I doubt former Prez Trump will be seriously considering any plea deals anytime soon, his defense lawyers should still be starting on guideline calculations.

Meanwhile, though it seems the specifics of the indictment will not be public until early next week, a few press pieces are already discussing former Prez Trump's statutory sentencing exposure based on reports of the apparent charges in his indictment: 

From Forbes, "What Crimes Was Trump Charged With In Federal Documents Case? Here’s What We Know — And How Much Prison Time He Could Face"

From the New York Post, "Here are the charges and how many years Trump faces in federal Mar-a-Lago indictment"

Even though we do not know exactly the nature of all the charges, the New York Post piece concludes by asserting that "If convicted on all seven charges, the ex-president could face a 75-year prison sentence."  Of course, adding up the maximum sentence on all counts serves as a poor metric for assessing what likely sentence an indicted person might really face.  The applicable federal guideline range is a better metric, though that range is only advisory and the sentencing of a former president (and current presidential candidate) surely raises a number of unique 3553(a) sentencing issues.

Especially because we are still awaiting word from the Supreme Court on the use of acquitted conduct at sentencing (background here and here), I am tempted to use the indictment of former Prez Trump to try to bring more attention to that issue.  Based on current law, federal prosecutors could and likely would seek to have former Prez Trump sentenced on — and have his guideline range driven by — all their allegations even if he were acquitted on six of seven counts.  Interesting times.

UPDATE:  The federal indictment of former Prez Donald Trump was unsealed this afternoon and can be found at this link.  The indictment runs 49 pages and has a total of 37 counts brought against the former president (with stat maxes adding up to 400 total years in prison, I believe).

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  The USSC recent posted these four new entries:

• NEW  Offenders in the Federal Bureau of Prisons (May 2023)
• NEW  Drug Trafficking (May 2023)
• NEW  Fentanyl Trafficking (May 2023)
• NEW  Fentanyl Analogue Trafficking (May 2023)

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

"The Animal Crushing Offense Loophole"

The title of this post is the title of this new essay authored authored by Ben Buell available via SSRN. Here is its abstract:

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse.  Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing” — i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures.  But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines.  The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law.  Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct.  As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.”  It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

Oath Keepers founder gets 18 years in federal prison for role in Jan 6 riot

As reported in this AP piece, the "founder of the Oath Keepers extremist group was sentenced Thursday to 18 years in prison for orchestrating a weekslong plot that culminated in his followers attacking the U.S. Capitol in a bid to keep President Joe Biden out of the White House after the 2020 election." Here is more:

Stewart Rhodes is the first person charged in the Jan. 6, 2021, attack to be sentenced for seditious conspiracy, and his sentence is the longest that has been handed down so far in the hundreds of Capitol riot cases.

It’s another milestone for the Justice Department’s sprawling Jan. 6 investigation, which has led to seditious conspiracy convictions against the top leaders of two far-right extremist groups authorities say came to Washington prepared to fight to keep President Donald Trump in power at all costs.

Before handing down the sentence, the judge told a defiant Rhodes that he is a continued threat to the U.S., saying it’s clear Rhodes “wants democracy in this country to devolve into violence.”

“The moment you are released, whenever that may be, you will be ready to take up arms against your government,” U.S. District Judge Amit Mehta said....

Prosecutors had sought 25 years for Rhodes, who they say was the architect of a plot to forcibly disrupt the transfer of presidential power that included “quick reaction force” teams at a Virginia hotel to ferry weapons into D.C. if they were needed. The weapons were never deployed.

In remarks shortly before the judge handed down the sentence, Rhodes slammed the prosecution as politically motivated, noted that he never went inside the Capitol and insisted he never told anyone else to do so. “I’m a political prisoner and like President Trump my only crime is opposing those who are destroying our country,” Rhodes said.

In a first for a Jan. 6 case, U.S. District Judge Amit Mehta agreed with prosecutors to apply enhanced penalties for “terrorism,” under the argument that the Oath Keepers sought to influence the government through “intimidation or coercion.”  Judges in previous sentencings had shot down the Justice Department’s request for the so-called “terrorism enhancement” — which can lead to a longer prison term — but Mehta said it fits in Rhodes’ case.

Prosecutors argued that a lengthy sentence is necessary to deter future political violence. Assistant U.S. Attorney Kathryn Rakoczy pointed to interviews and speeches Rhodes has given from jail repeating the lie 2020 election was stolen and saying it would be again in 2024. In remarks just days ago, Rhodes called for “regime change,” the prosecutor said....

A lawyer for Rhodes, who plans to appeal his conviction, said prosecutors are unfairly trying to make Rhodes “the face” of January 6. Attorney Phillip Linder told the judge that Rhodes could have had many more Oath Keepers come to the Capitol “if he really wanted to” disrupt Congress’ certification of the Electoral College vote. “If you want to put a face on J6 (Jan. 6), you put it on Trump, right-wing media, politicians, all the people who spun that narrative,” Linder said.

Another Oath Keeper convicted alongside Rhodes in November — Florida chapter leader Kelly Meggs — was expected to receive his sentence later Thursday. Two other Oath Keepers, acquitted of the sedition charge but convicted of other offenses, will be sentenced Friday. And four other members found guilty of seditious conspiracy at a second trial in January are scheduled to be sentenced next week....

Rhodes’ sentence may forecast what prosecutors will seek for former Proud Boys national chairman Enrique Tarrio, who was convicted of seditious conspiracy alongside other leaders of his far-right group this month for what prosecutors said was a separate plot to block the transfer of presidential power. The Proud Boys will be sentenced in August and September.

Rhodes, 58, and the other Oath Keepers said there was never any plan to attack the Capitol or stop Congress from certifying Biden’s victory. The defense tried to seize on the fact that none of the Oath Keepers’ messages laid out an explicit plan to storm the Capitol. But prosecutors said the Oath Keepers saw an opportunity to further their goal to stop the transfer of power and sprang into action when the mob began storming the building....

Before Thursday, the longest sentence in the more than 1,000 Capitol riot cases was 14 years for a man with a long criminal record who attacked police officers with pepper spray and a chair as he stormed the Capitol. Just over 500 of the defendants have been sentenced, with more than half receiving prison time and the remainder getting sentences such as probation or home detention.

Rhodes will not only be appealing his convictions, but surely also this sentencing.  The application of the guidelines' 'terrorism enhancement" will surely be part of any sentencing appeal, though I suspect there will be plenty of other issues raised for the DC Circuit to consider.

Prior related posts:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy
• Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers 

UPDATE with additional sentencing:  This CBS News piece, which is mostly about the Rhodes sentencing, includes this news about a co-defendant's subsequent sentencing:

Hours after Rhodes was sentenced, his co-defendant Kelly Meggs, the leader of the Florida chapter of the Oath Keepers, was given a sentence of 12 years behind bars. Meggs was convicted of seditious conspiracy alongside Rhodes last November. Prosecutors alleged he spearheaded the effort to enter the Capitol.

Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers

Over at Lawfare, Roger Parloff has this remarkable new piece titled "Should Nine Oath Keepers Receive Terror-Enhanced Sentences?". This lengthy piece examines an array of intricate sentencing issues and it starts this way:

This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy.  The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight.  Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.

The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents.  Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here.

Among many other items noted, this piece notes that, in some of these cases, federal prosecutors are seeking enhanced punishment based on acquitted conduct:

Three of the nine defendants being sentenced were acquitted of seditious conspiracy.  One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.

It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard — which is all that is required for sentencing purposes.  Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner....

Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him — just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.

Prior related post:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy 

US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules

In this post last month, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines. The big ticket items in the proposed amendments concern "status points" and "zero-point offenders"; as detailed here, the Commission has officially sought comment on whether it should make these key parts of its new criminal history amendment "available for retroactive application."

Today, the USSC publish on its website this new 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is  how the memo gets started:

On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual.  Specifically, Part A of the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), and Part B, Subpart 1 provides a twolevel downward adjustment for certain offenders with zero criminal history points under the guidelines (“zero-point offenders”).  Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.  As required by its Rules of Practice and Procedure,  the Commission voted at the April 5, 2023 public meeting to instruct staff to prepare a retroactivity impact analysis to aid the Commission in determining whether to do so.  This memorandum provides that analysis.  

Part I of this memorandum summarizes the operation of the 2023 criminal history amendment applicable to “status points” and “zero-point offenders.”  Part II of the memorandum provides background on the statutory authority and guidelines policy statement governing retroactive application of amendments to the federal sentencing guidelines, noting the factors to be considered in the Commission’s decision regarding retroactivity. Part III of the memorandum provides an estimate of the impact of Parts A and B, Subpart 1 of the amendment if the Commission were to authorize the courts to apply these parts of the amendment retroactively.  Part IV of this memorandum describes how the analysis was performed.

Here is the summary of the details of the USSC's analysis of who would benefit from retroactive application of its proposed criminal history amendments:

Staff estimates that there are 50,545 offenders in the custody of the Federal Bureau of Prisons (BOP) as of January 28, 2023, who were assigned status points at sentencing (“status points offenders”)....  Staff estimates that approximately one-quarter (22.7%, n = 11,495) of the 50,545 status points offenders would have a lower guideline range if the Commission were to make Part A of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 106 months, a reduction of 14 months (or 11.7%).  The offenders would be released over a period of many years....

Staff estimates that there are 34,922 offenders in BOP custody as of January 28, 2023, for whom no criminal history points were assigned under Chapter Four, Part A of the Guidelines Manual when sentenced for their instant offense.  Of those 34,922 zero-point offenders, 12,574 meet the criteria in Part B, Subpart 1 of the 2023 Criminal History Amendment.  Staff estimates that slightly more than half (57.8%, n = 7,272) of those offenders would have lower guideline range if the Commission were to make Part B, Subpart 1 of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).  The offenders would be released over a period of many years.

Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

Eighth Circuit panel seemingly misreads the US Sentencing Commission's sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission's decision to amend the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision -- § 1B1.13(b)(6) -- that expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances."  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow "changes in the law" to be considered in determining whether a defendant presents and "extraordinary and compelling reason" for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious "held that a non-retroactive change in law regarding sentencing ...  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A)."  Then the panel rejects the defendant's argument that the Supreme Court's opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): "It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion."   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for "change in the law" to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.

Notable new Roll Call review of congressional views of US Sentencing Commission's debate over sentence reductions

Roll Call has this notable new piece discussing the debate over the new federal sentencing guidelines for sentence reduction motions.  The article mostly discusses the politics surrounding reform rather than all the particulars of the legal reforms, and I am not sure it breaks any new ground.  But it is still a useful read for those keeping up on these matters, even though the text and even the headline of the piece is a bit off legally.  Here are excerpts:

A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law, an approach Republican senators warned will hamper, if not destroy, the possibility of future criminal justice legislation.

The policy approved this month by the low-profile U.S. Sentencing Commission is deep in the legal weeds, giving guidance for federal judges on how to interpret a section of a sweeping bipartisan overhaul of the federal criminal justice system passed in 2018.  But the debate on that approach, which goes into effect in November unless Congress disapproves it, offers an inside look at the negotiations and challenges for lawmakers who want to take more steps to address racial inequality in the criminal justice system through sentencing changes...

In the 2018 criminal justice law, Congress allowed federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons. Judges released thousands of inmates through that mechanism during the COVID-19 pandemic.

Under the sentencing guidance the commission adopted this month, a change in a law could be potential grounds for reducing a defendant’s sentence. Specifically, judges could consider reducing the sentence of an inmate who has served 10 years of an “unusually long sentence” if there is a “gross disparity” between their sentence and sentences imposed under new law.

Senate Majority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley of Iowa, who was the lead Republican on the push for the 2018 law, warned the commission that the guidance would cause problems for future bills that would reduce prison sentences. McConnell in a February letter to the commission said that no issue was more controversial during the debate on the 2018 law than whether it would be applied retroactively to those already in prison. Congress is extremely careful with use of retroactivity — if lawmakers want something to be retroactive, they typically say so clearly in the law — and so guidance that approves of judges doing so would “poison the well” in Congress, he said....

The guidelines went through changes following the comments from Senate Republicans and Democrats, but the thrust of the provision remained the same and the commission voted for guidelines that approve of judges retroactively considering certain sentences.

I am inclined to dicker with the very first clause of the article — "A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law" — because it was Congress who created the tool to reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) and Congress did so way back in 1984.  In addition, as this article notes, the FIRST STEP Act of 2018 (another act of Congress) allowed this tool to function more effectively by allowing prisoners to make motions directly in court for sentence reduction without awaiting a filing by the Bureau of Prisons. 

Moreover, since passage of the FIRST STEP Act, many circuits have ruled that a change in law could be potential grounds for reducing a defendant’s sentence in any and every case, whereas the new guidelines promulated by the US Sentencing Commission significantly restricts the circumstances under which a change of law can be the basis for a sentencing reduction.  Thus, I think a more accurate openning line might have been something like: "A federal agency has narrowed the reach of a long-standing tool that Congress provided to judges as a means to reduce sentences which had become far more widely used after passage of the bipartisan FIRST STEP Act."

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules

The highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission last week (basics here) concerns a major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" (discussed here).  But the most consequential amendment might prove to be new provisions altering how criminal history will impact guideline calculations.  USSC Chair Reeves discussed in his statement at last week's hearing (just some of) the particulars:

[W]e have proposed addressing two discrete ways in which the sentencing guidelines punish people for having a “criminal history.”  The first proposal aimed to reduce or eliminate the use of “status points,” which are sentencing enhancements given to people who committed a crime while on parole or probation.  As we heard from many commenters, status points often amount to a form of “double penalty.”...  Moreover, Commission research strongly suggests that status points’ ability to predict recidivism -- a core justification for their use -- may be extremely weak.

In light of all this, the Commission’s final policy eliminates status points in the vast majority of criminal cases. For a limited category of defendants with extensive criminal histories, we are cutting the effect of status points in half, reflecting the idea that this tool may sometimes achieve other goals beyond predicting recidivism.

The second “criminal history” proposal we issued sought to fulfill a core directive Congress gave the Commission at its inception.  That directive says that, in general, “a first offender who has not been convicted of a crime of violence or an otherwise serious offense” should not be incarcerated.  The Commission’s proposal sought to define who met this standard and what the consequences for meeting this standard should be.

Ultimately, we decided to answer both questions broadly.  Our final policy provides a larger reduction in sentence for a larger category of people than the status quo.  While we agreed to limit this reduction in a limited set of circumstances, we also agreed to give judges discretion to expand non-carceral options to more people.

These two items concerning "status points" and "zero-point-offenders" are the big ticket criminal history matters, though the Commission also adds to its examples of overrepresented criminal history cases involving criminal history points resulting from marijuana possession convictions. 

As detailed here, the Commission has officially sought comment on whether it should make the key parts of its new criminal history amendment "available for retroactive application."  The Commission states that a "retroactivity impact analysis will be made available to the public as soon as practicable."  I suspect that analysis will show these criminal histpry changes could impact many thousands, perhaps tens of thousands, of federal prisoners.  This June 2022 report from the Commission detailed that "over one-third of federal offenders (37.5%) received two 'status points' under §4A1.1(d) as part of their criminal history scores."  And this 2022 USSC Quick Facts accounting of federal prisoners noted that almost 30% "have little or no prior criminal history."  Though not all these populations would clearly benefit from retroactive application of the new criminal history rules, a sizeable number likely would.   

Retroactivity dynamics aside, it appears from Table 23 in the USSC's latest annual data on criminal history scores that over 60% of federal defendants sentences in fiscal year 2022 had either had zero criminal history points (33.9%) or received status points (26.7%).  In other words, the data suggest that more future federal defendants will be impacted by these criminal history amendments than won't be.  In short, these are relatively small criminal history changes sure to have a relatively big impact.

Has the US Sentencing Commission now "overruled" circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction?

Perhaps the highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission yesterday (basics here) concerns the major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)."  This "policy statement" structures the availability of what are often called "compassionate release" motions that, after the FIRST STEP Act, can be brought to sentencing courts directly by federal prisoners.  Notably, when introducting the Commission's amendments to § 1B1.13, USSC Chair Reeves stressed in his statement that the term compassionate release "is a 'misnomer'" because § 3582(c)(1)(A) sets forth a more general "sentence-reducing tool" authorizing judges "to modify sentences whenever new 'extraordinary and compelling' reasons arise."

This Reuters article (which uses the compassionate release "misnomer") provide a brief account of the new amendment to guideline § 1B1.13:

The U.S. Sentencing Commission approved new guidelines on Wednesday that will expand federal inmates' ability to qualify for compassionate release from prison.  The new policy, approved in a vote of 4-3, was part of a broader package of amendments, and represent the most sweeping criminal justice reforms the commission has enacted in more than four years....

The new compassionate release guidelines approved on Wednesday expanded the criteria for what can qualify as "extraordinary and compelling reasons" to grant compassionate release, and it will give judges more discretion to determine when a sentence reduction is warranted.  Among the new categories that could make an inmate eligible for compassionate release is if he or she becomes the victim of sexual assault by a corrections officer.

Three members of the panel opposed the final policy, saying they disagreed with a provision that could allow judges to grant compassionate release to inmates if changes to federal sentencing laws renders their prison term inequitable. The policy "makes a systemic, structural change without congressional authorization," commission member Candice Wong said.

Though there are lots of new and important elements to the new § 1B1.13, one particular issue that has generated a particularly interesting debate in the circuit courts (and before the Commission) is whether a district judge can rely on a "change in the law" to grant a 3582(c)(1)(A) sentencing reduction.  This question has deeply divided the circuits; as discussed here, the Sixth Circuit a few months ago rendered a big divided en banc ruling in US v. McCall which held, as a matter of statutory interpretation, "that nonretroactive changes in sentencing law cannot be 'extraordinary and compelling reasons' that warrant relief" pursuant to 3582(c)(1)(A). 

But now the US Sentencing Commission, which Congress in 28 U.S.C. § 994(t) expressly gave the responisbility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," has expressly decided via its new amendments to § 1B1.13 that a "change in the law" legally can and sometimes should be the basis for a 3582(c)(1)(A) sentencing reduction.  Specifically, here is the interesting policy statement provision on this issue in the new guideline (with emphasis added):

(6) UNUSUALLY LONG SENTENCES.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

In other words, the US Sentencing Commission has decided, contra to the position of the Sixth Circuit and some other circuits, that a change in law can serve as an extraordinary and compelling reason for sentence reduction, though the Commission here limits such a "law-change" reason to cases in which a defendant has already served "at least 10 years" of an "unusually long sentence" and the law change "would produce a gross disparity" in sentencing outcomes. 

Though one might well debate the wisdom and reach of how the new guideline seeks to limit when "a change in the law" can provide an extraordinary and compelling reason for sentence reduction, it is beyond debate that the US Sentencing Commission, the expert agency tasked expressly by Congress to "describe what should be considered" reasons for a 3582(c)(1)(A) sentence reduction, has now explicitly decided that at least sometimes a "change in law" CAN statutorily be a proper basis for a reduction under the statute.  In this way, I answer the question in the title of this post as "yes": the US Sentencing Commission's promulagation of this new § 1B1.13 provision serves to functionally "overrule" any and all court precedents that nonretroactive changes in law cannot be the basis for a statutory sentence reduction under 18 U.S.C § 3582(c)(1)(A).

UPDATE:  Thanks to some feedback from a number of helpful readers, I realized it would be useful to note that some circuits speaking to this issue expressly recognized that any court accounting of "extraordinary and compelling reason" would be only a gap-filler until the Commission amended § 1B1.13 and the Justice Department has also said as much when opposing Supreme Court review of the circuit split on this issue.  Professor Erika Zunkel's testimony to the USSC at pp. 9-13 speaks effectively to these issues at great and effective length for anyone interested in a deeper dive.

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

US Sentencing Commission promulgates numerous consequential new guideline amendments (while defering resolution of other big issues), with big division on compassionate release

As USSC Chair Judge Carlton Reeves stressed in this lengthy and moving openning statement, the US Sentencing "Commission has done an extraordinary amount of work over the last six months."  That work in part culminated today in the promulgation of numerous consequential new guideline amendments, though the USSC also defering resolution of other big issues.  Acquitted conduct sentencing (recently flagged here) is one of the big topics that was deferred for future amendment cycles.  But there were an array of other critical issues tackled through a total of eleven intricate guideline amendments. 

Notably, the new bipartisan fully loaded Commission voted unanimously in favor of ten of the eleven intricate guideline amendments that were promulgated today.  But arguably the most consequential of the amendments to the federal sentencing guidelines — namely the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)" — divided the new Commissioners.  Specifically, the four Democratic appointees to the Commission voted to promulgate an amendment that provides federal judges with relatively broad authority to reduce sentences pursuant to 3582(c)(1)(A), whereas the three Republican appointees to the Commission voted againt this amendment.  

As federal sentencing gurus know, none of these amendments will formally become guidelines law until November 1, 2023.  And, until that time, Congress has authority to enact legislation to reject any or all of these amendments in order to prevent them from becoming law.  The ten amendments that received unanimous support from all the new Commissioners seem highly unlikley to be subject to override by Congress.  But given the divided vote over the commpassionate release guideline, as well as all the important issues that this guideline touches upon, I am  quite uncertain about whether Congress might seriously seek to weigh in on this topic in the coming months.  (I am nearly certain that some notable members of Congress will express some criticism of the proposed amendment and that some notable members of Congress will express support for the proposed amendment.)

I plan to do some separate posts on some of the individual amendnments (and on some of the non-amendments and some of the speeches by various members of the Commission) in coming days and weeks.  But before concluding this post, I think it worth flagging the reality that, even though none of these amendments can become formal law until November 1, 2023, federal judges certainly can — and I generally think should — consider the wisdom reflected in these new proposed guidelines right away.  Whether the topic is compassionate release or firearms  or criminal history or fake pills or other matters addressed by these amendments, federal judges currently have lots of discretion to consider an array of factors at sentencing and the grave responsibility of trying to exercise their sentencing discretion wisely.  The Commission is the expert sentencing policy-making body in the federal system, and its proposals sensibly merit at least thoughtful consideration by sentencing judges even before they become law.

UPDATE:  The US Sentencing Commission now have this official press release on its webstite with this extended heading: "'Back In Business' U.S. Sentencing Commission Acts To Make Communities Safer & Stronger: New Policies Increase First Steps Toward Second Chances, Take Targeted Action On Gun Trafficking And Fentanyl, And Expand Alternatives To Incarceration." Here is most of the text of the press release:

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted today to promulgate amendments to the federal sentencing guidelines. “The Sentencing Commission is back in business,” said Chair Carlton W. Reeves. “Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” Watch public meeting. 

During the pandemic, federal judges saved lives using their authority in 18 U.S.C. § 3582(c)(1)(A) to reduce sentences for incarcerated people facing “extraordinary and compelling” circumstances like certain risks posed by COVID-19.  Responding to the First Step Act’s directive to increase the use and transparency of this tool, the Commission updated its guidelines to reflect lessons learned since the pandemic, ensure judges can continue to take first steps toward second chances for those who deserve them, and reunite families through appropriate reentry.  “Judges are in the best position to decide if someone deserves to have the length of their sentence revisited,” said Chair Reeves. “This policy trusts courts to continue doing what is right.”

Since the Commission last had a quorum, communities across the country have struggled with the ills of gun trafficking and fentanyl.  Congress directed the Commission to act on gun trafficking through the Bipartisan Safer Communities Act of 2022, while the Drug Enforcement Administration asked the Commission to evaluate possible action on fentanyl.  In response, the Commission voted to take targeted action on both issues. “The problems of gun trafficking and drug overdoses demand a comprehensive response,” said Vice Chair Claire Murray. “I am proud to say the Commission is doing its part by ensuring we have proportional sentences for serious offenses.”

The Commission is also revising guidance to courts regarding people facing their first federal conviction.  Relying on data and extensive analysis about recidivism, the Commission is acting to maximize public safety and encourage consideration of alternatives to incarceration.  “Our new policies revise the sentencing guidelines based on empirical research and experience,” said Vice Chair Laura Mate.  “This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Among the many other policies issued by the Commission are those that seek to address ghost guns, sexual abuse of incarcerated people by correctional employees, clarify acceptance of responsibility points for defendants, and implement criminal justice legislation passed by Congress.  “The policies issued today reflect the wide spectrum of views we received through public hearing testimony and tens of thousands of letters,” said Chair Reeves. “The policies issued today prove, beyond a doubt, that when you speak to the Commission, you will be heard.”

While the newly reconstituted Commission concludes its first policymaking cycle, there is more work to do. In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023. 

Among many big amendment questions, will the new USSC promulgate new guidelines to limit acquitted conduct enhancements?

As flagged in this post a few weeks ago, we can expect the US Sentencing Commission to vote to promulgate its first set of new guidelines amendments in five years later today.  Specifically, the announcement here on the Commission's website notes that "a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m." and that the agenda will include a "Vote to Promulgate Proposed Amendments."  As I have explained before, and as detailed in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year.  One of those possible amendments in newly discussed in this lengthy Bloomberg Law piece titled "Sentencing Commission to Vote on Handling of Acquitted Conduct."  Here are excerpts (with links from the original):

The US Sentencing Commission is expected on Wednesday to vote on an amendment that would eliminate acquitted conduct from the definition of relevant conduct for purposes of calculating the guidelines range.

Judges would still be able to consider acquitted conduct that was proven beyond a reasonable doubt or admitted by the defendant in plea proceedings or a colloquy.

The amendment has wide support from the defense bar, current and former federal judges, and three US Senators, although some say it won’t completely solve the problem.

Others, including the Victims Advisory Group, oppose the changes, arguing that courts need to be able to consider the full context of an offense. In its opposition, the Department of Justice emphasized the difficulty judges may have in determining what conduct they can or can’t consider.

In addition to perhaps addressing acquitted conduct, the Commission will also certainly put forward amendments concerning the grounds for compassionate release which will certainly impact many prisoners nationwide. A number of other possible amendments being considered by the Commission could also prove quite consequential. Interesting times.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 
• US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments