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July 1, 2011

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

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July 1, 2011 at 12:17 PM | Permalink


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Yeah, its about time those people get a break and call it like it should be...Now if Congress can just keep on doing nothing, till after 1 Nov, it will be good..Can't imagine how FAMM Org and the fasmilies and even their attorneys are feeling about now....

The Federal system is not God and cannot or should not hold people exccessively long...They deserve the right to either maske it or mess up and go back....I never thought I would see this come so far so quickly...Some body is doing there job well and others are listening..

Posted by: Josh2 | Jul 1, 2011 2:32:23 PM

Can someone please explain what the effect of retroactivity of the GUIDELINES (as opposed to the FSA itself), will mean for defendants? I mean, courts still have to stick to the pre-FSA mandatory minimums, correct?

Second, does anyone have any idea what this decision will mean for the federal courts in circuits that have already ruled that the FSA is not retroactive?

Your help would be greatly appreciated!

Posted by: LC | Jul 1, 2011 6:32:24 PM

I think your right on the mandatory minimums, only congress can change them. I'm certain this will be universal for all circuits, it has to be. It will be the law of the land no matter what circuit your in.....I would like to bash congress, but I think its such an accomplishment, I won't.....I truely feel for those who had to rot all those years and those who are just out of reach for the wire...

But many will get huge cuts.....Its appropriate that its the 4th of July as well.

I hope congress could retro the mandatories as well, it has gone this far...

LC, I sense your concern, I have hope for you...Never give up, just hang in there, its all you can do....More people will respond to this thread and you will get some questions answered by those in the know, I'm truley not one..

Posted by: Josh2 | Jul 1, 2011 10:46:57 PM

From what I have read thus far, the application of retroactivity is limited in scope for whom it applies to. Many with "Cocaine Base" convictions were sentenced above the mandatory minimums, or did not possess quantities to invoke the mandatory minimums. These are the cases where sentence reductions apply.

However, it looks like the main caveat happens when analyzing the commission of the crime. If a weapon was involved, the retroactive application seems to not apply. However, even with these restrictions, about twelve thousand federal inmates are eligible for an average of 37 months in sentence reductions.

These reductions are not automatic though. Each inmate must submit a motion to the district court (assumably the district court where they were convicted and sentenced) and apply for this reduction. Each reduction requires judicial review of applicability.

Posted by: Eric Matthews | Jul 2, 2011 1:20:32 PM

thanks, eric, that clarifies everything for me.

Posted by: LC | Jul 2, 2011 3:17:14 PM

My husband got a mandatory min of 10 years ..his po told me that he most likely won't get a reduction because its the minimum sentence..does anyone know if true and he told me that each case would have to be reviewed ..do to the quantity of the drug ..and if the mandatory min is 10 years..then do we wait for congress to reduce it ..I'm so confused..

Posted by: chasity | Jul 13, 2011 5:39:07 PM

can somone please tell me how this will help people who got life..Or will it even affect them..

Posted by: jammie taylor | Sep 27, 2011 5:19:49 PM

is this law just for people dealing with crack. what if you in prison for pill buying or meth. can you still get new sentencing

Posted by: susie | Oct 1, 2011 6:01:20 PM

if you got locked up for smurffing can you get new sentencing law applied

Posted by: susie | Oct 1, 2011 6:10:34 PM

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