Unanimously Votes for Drug Reduction Retroactivity

Last week, in a historic victory for nearly 46,000 federal drug offenders, the United States Sentencing Commission (USSC) voted unanimously to apply recent amendments to the federal drug sentencing guidelines retroactively to all eligible offenders.

Earlier this year, the Sentencing Commission, who creates federal criminal sentencing statutes, voted to alter the “drug quantity table” used for federal sentencing by adjusting the “offense levels” downwardly by two levels. That prospective amendment will, absent overruling by Congress, go into effect November 1, 2014.

However, possible retroactive application of the “minus two” amendment was put on hold until the Sentencing Commission could solicit public comment and advice from the key stakeholders in the federal criminal justice and corrections fields. The Commission’s initial estimate was that some 51,000 current federal prisoners would gain reductions in their sentences, ranging from a few months to a few years, and that many of them would receive immediate release. In the case of those with lifetime terms of federal imprisonment, this would enable them to be released from custody at some point in their lifetime, if they live long enough.

At a public hearing in June, representatives from Eric Holder’s Department of Justice urged the Commission to grant retroactivity only to a small group of incarcerated offenders, those with minimal criminal histories and otherwise low-level offenders, under a concern for “public safety.” According to Brandon Sample, Executive Director of the criminal justice reform group Prisology, some 60,000 citizens also weighed in with letters and emails to the Commission, most of them urging full retroactivity.

In the end, a compromise was rendered. While full retroactivity was unanimously approved, the Commission said it would take a “measured” approach and make retroactivity effective on November 1, 2015, instead of in 2014. Commission chairperson Patti B. Saris, a United States District Court Judge for the District of Massachusetts, said in a press release,
“The delay will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allow effective reentry plans.”

Holder’s office did not issue an immediate comment, but it is projected that 46,265 federal prisoners will be released early due to the retroactive application of the change to the drug quantity table.

The matter is not yet set in stone however. Under the federal statutes empowering the Sentencing Commission to set the sentencing ranges in the federal criminal courts, Congress has until November 1, 2014, to overrule or modify the proposed change. While Congress has rarely used its supervisory power since the Commission’s creation in 1987, it has done so in the past, most notably in 1995, when it rejected the Commission’s proposed change to the “crack cocaine” guidelines. But given the changing public attitudes on drug sentencing since that time, intervention by Congress seems less likely this time around.