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January 9, 2014

US Sentencing Commission suggests lowering drug guideline sentences across the board!

In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses.  This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:

The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses.  Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.

The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.

With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).

“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.

“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.

The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.

For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:

1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.

2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.

3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.

Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote.  But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.

January 9, 2014 at 06:08 PM | Permalink

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Comments

Prof. Berman:

Very good news indeed. And I fully agree with your suggestion to start arguing now for an additional two level-downward variance based on the recognition of the Sentencing Commission that the drug guidelines are too high.

Posted by: Michael R. Levine | Jan 10, 2014 11:37:17 AM

Otis must be crying.

Posted by: Steve Prof | Jan 10, 2014 6:05:15 PM

Unless I am experiencing early onset dementia, the Sentencing Commission is now on record, in some fashion, that the financial guidelines, the child pornography guidelines, and now the drug guidelines, are broken (mostly, but not exclusively, as being too high) and need fixing. They also have lowered the impact, under certain circumstances, of prior convictions under the immigration guidelines. Is there a point at which it is reasonable to conclude that the entire guideline construct in inherently without lasting integrity, and is deserving of even less weight than typically afforded even under Booker?

I am especially interested in the thoughts of Mr. Otis, as well as any regular practitioners of federal criminal defense.

Posted by: USPO | Jan 10, 2014 7:59:41 PM

Both the Professor and USPO make too much of this news. From the outset in 1984, The Sentencing Guidelines were viewed as a living, breathing, set of rules that were clearly expected to evolve over time. This is the latest step in that evolution and nothing more.

Posted by: mjs | Jan 12, 2014 12:38:14 PM

Fair point, mjs, but rougly 99% of the evolution between 1984 and 2007 was toward making guideline sentences longer and longer. But starting with guideline crack reform in 2007, followed by the FSA and some pro-departure reforms in 2010, followed now by this proposed across-the-board drug sentence cut, all of the evolution is now running the other way.

Some of this is a function of bloated federal prisons, dropping crime rates and new political attitudes. But I really think a lot of this is an echo of Booker and Gall and Kimbrough. Now that it is clear judges can (and regularly will) disregard those guidelines that they view as much too harsh, the Sentencing Commission knows it need to make guidelines more to the liking of judges and SCOTUS and less to the liking of just federal prosecutors and DOJ.

Posted by: Doug B. | Jan 12, 2014 2:16:58 PM

And so the pendulum swings.....

Posted by: mjs | Jan 12, 2014 2:39:41 PM

My son is part of the mandatory sentencing law ,he got 5 years federal time ,no criminal history, lowest man in the drug arrest ,not fair !!!!

Posted by: patricia herrera | Feb 6, 2014 5:40:44 PM

Never made a comment on any thing before this. Sentenced in Feb. 1990 on 2 counts for 4yrs to 12yrs consecutively. Making final sentence mandatory minimum 8yrs. to 24yrs. for 9.6g of cocaine 1st offense, which I'm still on parole since Feb. 1999 with no new conviction. The sentencing guidelines has always been too HARSH and for all the changes there will be people as myself who will not benefit because we are under the jurisdiction of the U.S. PAROLE COMMISSION, which seem "NOT TO TAKE THESE CHANGES IN CONSIDERATION". So the original sentencing guide lines still hurting a lot of people.

Posted by: Mr. Grant professional citizen | Feb 16, 2014 10:56:58 AM

have you received any info on the march 13th hearing on this? thanks, george

Posted by: george wilson | Mar 16, 2014 2:10:36 PM

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