Updated Prosecution and Sentencing Policy on Cocaine

The Justice Department updated (December 16) its sentencing guidelines on drug cases. The most significant action arising from the memo relates to sentencing based on drug type.

This is particularly important given the perceived inequality of sentencing for those convicted of crack cocaine possession versus mere powdered cocaine. Justice, in recent testimony to the Congress (and restated in the memo) says:

"First, the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine. Second, as documented by the Sentencing Commission, the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end.”

In the memo, Justice is instructing prosecutors that in cases in which Title 21 mandatory minimum sentences are applicable based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence except for the person is violent or has a history of violence, leads major drug trafficking organizations, and has caused serious bodily injury or death. 

In addition, at any sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine unless warranted otherwise consistent with the new guidelines.

(posted: 12-21-22)

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Federal Prisons and Camera Improvements

The House passed (December 14) legislation (also passed the Senate last year) requiring the Bureau of Prisons (BOP) in the Department of Justice to upgrade prison camera systems. The legislation will be signed into law by President Biden.

Under the Prison Camera Reform Act (S.2899), BOP will be required to ensure that security cameras, radio, and public address systems can ensure the secure storage, logging, preservation, and accessibility of recordings for future investigators pursuing allegations of misconduct, abuse, or other criminal activity in prisons, including the flow of dangerous contraband.

This legislation was put forward as a result of coverage and quality inadequacies in current BOP prison camera systems that have undermined the investigation and prosecution of many allegations of misconduct by both prisoners and prison employees, including sexual assault against prisoners by prison employees.

BOP will have 90 days to develop an improvement plan and submit it to Congress, to include a 3-year implementation strategy and cost projection that must be executed within 3 years.

(posted: 12-15-22)

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Marijuana Possession Pardon

President Biden issued (October 6) what amounts to a broad-based “complete” and “unconditional pardon” of persons convicted, charged or could be charged in the future, on simple possession of marijuana in violation of existing Federal law.

The pardon applies to both U.S. citizens and non-citizen, lawful permanent residents. It does not apply to persons who were non-citizens not lawfully present in the United States at the time of their offense. For eligible persons, the pardon will restore such persons “full political, civil, and other rights.”

The Department of Justice (DOJ) will “administer and effectuate” the issuance of certificates to eligible applicants who have already been charged or convicted of offenses tied to this pardon. DOJ announced that it will begin a process “in the coming days.”

(updated: 10-6-22)

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Court Case Backlog Funding

The White House announced (July 21st) a “Safer America Plan,” that proposes to invest $35 billion in new funding in law enforcement, judicial, and violence prevention programs. The President’s FY 2023 budget request proposed $30 billion in new mandatory funding as part of these efforts, but said at the time (March) that it would be providing details in the future on the proposal.

Included in this plan is an investment of “nearly $3 billion” that the White House says will go towards helping communities “clear court backlogs and solve murders.” The proposal also says that the plan will impose tougher penalties for fentanyl trafficking.

Details have so far not been released, and at this time it is not clear if further action is needed on the part of Congress to make the plan's  resources available for these purposes.

(updated: 7-21-22)

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Executive Action on Incarceration

President Biden’s Executive Order (EO) focusing on policing reform (May 25, 2022) included elements of broader Federal criminal justice reforms.  Specifically, the EO:

• Directs the development of a government-wide strategic plan that “advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.”

• Requires Justice to publish an annual report on resources available to support the needs of persons on probation or supervised release.

• Improves conditions of confinement through updates to procedures that mitigate COVID-19 in correctional facilities including identifying alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.

• Justice must report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

• Requires “full implementation” of the FIRST STEP Act by DOJ and DOJ will be required to report annually on implementation metrics including with respect to any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

(updated: 5-25-22)

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Time Credits Program - Rule

The Department of Justice announced finalization of a rule implementing a Time Credits program for individuals federally incarcerated as required under the First Step Act, enacted into law in 2018. The Time Credits program is intended to address prisoner recidivism with time served credits based on the amount of time a prisoner spends in recidivism reduction programs and productive activities. Specifically, the rule provides inmates with 10 to 15 days of credit for every 30 days spent in eligible programs and activities. The credits can be applied towards supervised release.

(updated: 2-2-22)

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