Comments submitted to the Federal Bureau of Prisons with FAMM and the Justice Action Network regarding a proposed rule on earned time credits authorized by the FIRST Step Act of 2018 (S. 756).

Coalition letter to House and Senate Judiciary Committee leadership regarding a technical fix to the First Step Act of 2018 that would provide equal access to compassionate release for vulnerable prisoners convicted before federal parole was abolished.

Coalition letter to Senate and House leadership regarding the technical fix to properly expand the Elderly Home Detention Pilot Program under the First Step Act (S. 3035, 2020), for inclusion in a relief package responding to the coronavirus pandemic.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: Certiorari is warranted because the Third Circuit’s decision prohibits a whole class of crack-cocaine offenders from being eligible for resentencing under the First Step Act while identically situated defendants in other circuits may be resentenced.  The Third Circuit’s rule is inconsistent with Congress’s goal of providing relief to low-level drug offenders because it excludes the lowest-level offenders and those with uncertain drug amounts from resentencing while allowing those who possessed greater amounts of crack cocaine to obtain relief.  Defendants convicted for possessing lower-quantities of crack cocaine could receive substantial sentence reductions even though they remain eligible for the same sentence.  The Third Circuit’s rule frustrates Congress’s goal of providing relief to the disproportionate number of Black Americans incarcerated for crack-cocaine offenses.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant Thomas Bryant, Jr., Supporting Reversal.

Argument: Sentencing courts have broad discretion to modify a sentence under Section 3582(c)(1)(A)(i). Sentencing courts have authority to grant motions for compassionate release if the defendant does not meet one of the "extraordinary and compelling reasons" described by the Commission. Vesting sentencing courts with discretion to identify "extraordinary and compelling reasons" is consistent with the judge's role at an initial sentencing and does not open any "floodgates." The District Court's order should be reversed and the case remanded for further proceedings.

Courts around the United States have increasingly recognized that the coronavirus is an extraordinary and compelling reason warranting release of inmates. Several courts have heeded the call from legal and medical experts to release vulnerable and old inmates from inherently unsafe facilities.

Congress amended 18 U.S.C. § 3582 to permit prisoners to file their own motions for compassionate release.

Risk assessment – the assessment of risk of reoffending or risk of future violent behavior – is a hot topic. However, only rarely do lawyers address the questions raised by criminal justice-related risk assessment. This finding suggests that defense lawyers may not be paying enough attention to the issue. A key issue involves addressing how the risk assessment connects the dots between a specific client’s circumstances and the factors related to reoffending and violence.

FAMM, Washington Lawyers’ Committee, NACDL Launch Emergency Compassionate Release Effort-- In a massive pro bono effort, our groups are recruiting, training, and supporting lawyers who agree to represent individuals in federal prisons eligible for compassionate release and those at special risk due to COVID-19.

Nation’s Criminal Defense Bar and Charles Koch Foundation Mark the One-Year Anniversary of the First Step Act with the NACDL First Step Act Resource Center -- Washington, DC (Dec. 19, 2019) – Saturday, December 21, marks the one-year anniversary of the signing into law of the First Step Act, a landmark bipartisan criminal justice reform measure. The Act was passed as a first step toward addressing the problems related to overcriminalization and overincarceration in the federal criminal justice system.