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February 2, 2011

US Sentencing Commission forecasts impact of making new crack guidelines retroactive

I just notice this important new document posted on the US Sentencing Commission's website, which is a USSC memorandum titled "Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively."  The details of this 60+ page memo are as intricate as the title, though the basic story concerns how many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced.

The detailed analysis in this memo defies simplistic summary, especially because lots of assumptions and alternative ideas are built into the crack re-sentencing number-crunching.  But these two passages provide the highlights of one key part of the analysis: 

This section of the memorandum provides an analysis of the estimated impact of New Crack Amendment BOL 26, should it be made retroactive, on offenders incarcerated as of October 1, 2010, in the federal prison system.  This analysis was prepared by the Commission's Office of Research and Data (ORD).  ORD estimates that 12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if New Crack Amendment BOL 26 were made retroactive.  If these offenders were to receive reduced sentences pursuant to New Crack Amendment BOL 26, the dates on which they would be released would span more than thirty years....

Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months).  Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less.  Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.

It is interesting to compare this forecast of the impact making the new FSA-inspired crack guidelines retroactive with the USSC's detailed data concerning the actual impact of the 2007 crack guideline reduction being applied retroactively (with the USSC's latest data run here). The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment. Thus, its seems making the FSA-inspired crack guidelines retroactive will actually effect a slightly smaller number of defendants, but could have an even greater impact on those defendants' sentencing terms.

February 2, 2011 at 11:11 AM | Permalink


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I think that if an inmate, regardless of offense, can read that title straight through they should be entitled to immediate release.

Posted by: Ala JD | Feb 2, 2011 1:38:16 PM

To make the FSA retroactive is what needs to be done..Congress botched up the effective date, so this would fix a 26 yr old error and trump a weak move by congress....I can't imagine living day after day with the enormous sentences these people have endured.....Git R Done.....When is it enough?

Posted by: Josh | Feb 2, 2011 1:41:32 PM

And the cost savings would be??

Posted by: Linda | Feb 2, 2011 4:02:38 PM


12,835 offenders times average sentence reduction of 37 months times monthly costs of imprisonment of $2,270.39 = Calculated savings of retroactivity of FSA

12,835 X 37 X $2,270.39 = $ 1,078,196,859.05

Posted by: Z | Feb 2, 2011 4:20:40 PM

The cost savings is huge...But its not really about cost savings.....Its about fixing something that was in error for 26 yrs, from day 1, when the Federsal guidelines were written....As are most of the MM and the ACCCA etc....They also need the good time days expanded, say 50%....Instead of 87.2%...But congress muffed that one up as well....We should pay the feds to stay away, so we can fix things and make updates as the times change...They are a huge muckFest....But I reslly don't want let ya know how I feel..

Posted by: Josh | Feb 2, 2011 5:07:17 PM

The "background" to USSG 1B1.10 lists the factors the Commission considers in deciding whether to make an amendment retroactive. All favor retroactivity:

A) purpose of the amendment: to account for a legislative determination on the former injustice of crack sentences and to reflect a more just sentencing policy.
B) magnitude of the guideline change: Significant. According to the above excerpt, it's an average 22.7% (or 37 months) reduction. This is not similar to a "minor downward adjustment," which the Commission cites from legislative history to explain when retroactive application is not warranted.
C) difficulty in determining the new, amended range under 1B1.10(b): Not very difficult. It's a mere base offense level reduction.
Further, the relatively smooth process that accompanied the last reduction to crack's BOL also favors retroactive application of the current amendment. The process would be even less burdensome, with the issues that arose last time already having been litigated.

Posted by: DEJ | Feb 3, 2011 11:25:10 AM

Excellent comments DEJ..I also agree with your statements.

Posted by: Josh | Feb 3, 2011 2:05:42 PM

Nothing to hold back retroactivity except politics...

Posted by: Matthew Robinson | Feb 7, 2011 12:09:47 PM

I do agree with comments also. They need to reduce some of this time for prisoners who was sentence unjust my son is living proof. Im a parent.

Posted by: A.S.B. | May 8, 2011 4:21:25 PM

my father Has been in prison for 15 years he was sentenced 30 and i looked up his release date and it says he has 12 more years to go so i hope they pass this law and just let him out do you all thing there going to ive my father immediate release ??????

Posted by: Tony | May 23, 2011 9:43:09 AM

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