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January 14, 2014

Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences

USSCIn my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years.  Specifically, as reported here, the US Sentencing Commission voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all federal drug offenses.  I am pleased now here to share the insightful reactions to this important development coming from two insightful junior professors:  Professors Kevin Bennardo and Todd Haugh.

 Because Professor Haugh's comments are a bit shorter and more thematic, I will reprint his insights first:

First off, I agree wholeheartedly that this is a very important vote and a “really big deal.” But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders.  While I think the Commission is right to make the proposal and I certainly support it — drug penalties have been too harsh for too long — what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all. Let me explain.

According to the Commission’s press release (the actual language of the proposed amendment is available, although it’s hard to find — see here), the proposal will lower the base offense levels in the drug table by two across the board.  That’s nothing to sneeze at because every two level increase equals about another 20% on the final sentence; at the higher sentencing levels, this is significant time.  Yet, with mandatory minimums and prosecutorial charging practices, the Commission believes the prison population will be reduced only by around 6,500 inmates over five years.  With approximately 100,000 federal inmates currently serving time for drug offenses, this reduction, although welcome, is as the Commission admits, “modest.”

But what isn't modest is the Commission’s increasing willingness to propose sentencing reform, i.e., sentencing reduction.  This drug amendment proposal is the most recent example, but there are others.  Last September, the Commission urged Congress to reduce mandatory minimums for drug offences, make the Fair Sentencing Act retroactive, and expand the safety valve.  Around the same time, the Commission held a symposium on economic crimes and appeared to be genuinely considering the ABA’s proposal to remake the fraud guideline, which would lessen the impact of the loss calculation.  And, a little over a year ago, the Commission suggested aligning the penalties for the receipt and possession of child pornography (a majority of judges call the penalty levels for receipt cases “excessive”).  What’s important about these proposals is that every time the Commission comes out in support of (or even hints at) a sentencing reduction, it runs the risk of creating a “shadow guideline” — a hypothetical, less harsh version of a given guideline that, regardless of whether it is ultimately adopted, defense attorneys will argue should sway the court in the post-Booker, variance-driven regime.  This is exactly the sort of thing your original post suggests, and savvy defense lawyers will do it.  The Commission’s concern over creating shadow guidelines (and over the related Congressional reaction) has probably scuttled a number of proposals over the years to reduce unfair and disparity-producing guidelines.  I am happy to see the Commission setting aside the concern of shadow guidelines and Congressional reaction and forging ahead to proactively improve the guidelines as a whole.  While I’m sure some will argue this proposal does too little or comes too late, in my eyes it’s an important and continuing step in the right direction, and it shows a pattern of real leadership.  So, I say go ahead and get excited — even if this amendment doesn't go through for some reason, it sure seems that there will be more positive reforms to come.

And now, here are Professor Kevin Bennardo's insights, which digs very effectively into the nuts and bolts of what the USSC's proposed amendment really does and means:

First, thanks to Doug Berman for the opportunity to share my thoughts on his forum. Second, I very much support the U.S. Sentencing Commission’s preliminary proposed amendment to reduce (most of) the base offense levels in the Drug Quantity Table by two levels. I agree with Doug’s assessment that this proposal is huge news.

However… the proposed amendment brings two hang-ups to my mind — one with the existing structure of the Drug Quantity Table and another with the mechanics of the proposed amendment:

(1) First, the proposed amendment continues to fundamentally bind the Drug Quantity Table to the mandatory minimum sentences set forth in 21 U.S.C. § 841. It simply (and laudably) knocks the levels down two pegs.  Under the proposed amendment, offenders in criminal history category I who distribute a drug quantity that triggers a five year mandatory minimum will receive a base offense level of 24, leading to a range of 51-63 months (the lowest range that encompasses the five year mandatory minimum) rather than the current range of 63-78 months under offense level 26.  Likewise, offenders facing a ten year mandatory minimum will start from a base offense level of 30, leading to a range of 97-121 months (the lowest range that encompasses the ten year mandatory minimum) rather than the current range of 121-151 month under offense level 32.

As I’ve written elsewhere, extrapolating the base offense levels in the Drug Quantity Table from the statutory mandatory minimums works unfairness for those offenders who are not actually subject to a statutory mandatory minimum sentence.  Especially after the Supreme Court’s ruling in Alleyne v. United States and Attorney General Holder’s subsequent directive to federal prosecutors to structure indictments in such a way so as to avoid the operation of statutory mandatory minimum sentences on certain nonviolent, low-level drug offenders, we’ll only see increasing numbers of defendants who are not subject to statutory mandatory minimum sentences even though the sentencing court may find by a preponderance of the evidence that the offender distributed a quantity of drugs that would have triggered a statutory mandatory minimum had it been charged in the indictment and proven beyond a reasonable doubt.  These offenders deserve to be sentenced under a Drug Quantity Table that is wholly uncoupled from the mandatory minimum sentences written into the federal drug statutes, particularly in the wake of the Commission’s recent recommendation to Congress to consider lowering statutory mandatory minimums.  By continuing to extrapolate the base offense levels in the Drug Quantity Table from the statutory mandatory minimums, the proposed amendment fails to address this unfairness.

(2) Second, the proposed amendment to the Drug Quantity Table isn’t truly an “all drugs minus two” revision (like I expected it would be when I first read the press release).  Under the proposed amendment, the lowest base offense level in the Drug Quantity Table remains at 6 and the highest base offense level remains at 38.  Thus, offenders who distribute the smallest and largest drug quantities will see absolutely no change in their guideline calculations under the proposed amendment.  They won’t receive any “minus two” treatment.

For example, an offender who distributes less than 250 grams of marijuana receives base offense level 6 under the current version of the Drug Quantity Table.  Under the proposed amendment, that offender would still receive a base offense level of 6.  (The difference is that under the amended version, all offenders who distribute up to one kilogram of marijuana fall within base offense level 6.)  If the effect is to otherwise shift all base offense levels down by two, why not carry through with the same result at the margins of the Drug Quantity Table?  Why not just retain the same drug quantities as the current Drug Quantity Table and shift the whole thing down by two levels so that the smallest quantities carry a base offense level of 4 and the largest quantities max out at level 36?

While the difference between base offense level 4 and 6 may not be significant to an offender in criminal history category I (although it might be if the offender has other upward offense level adjustments), the difference can be meaningful for an offender in more serious criminal history categories.  For example, at offense level 4, a criminal history category III offender is subject to a guidelines range of 0-6 months and falls in Zone A of the Sentencing Table.  But at offense level 6, the same criminal history category III offender is looking at a guidelines range of 2-8 months and falls in Zone B. For that offender, the difference between offense levels 4 and 6 is a difference of a guidelines sentence that requires no confinement and a guidelines sentence that requires at least two months of community confinement or home detention under section 5C1.1. (Similarly meaningful differences obtain for offenders in criminal history category VI, who get pushed out of Zone B and into Zone C with the jump from offense level 4 to 6.) If the rest of Drug Quantity Table is to be reduced by two levels, why not drop the smallest drug quantities down to offense level 4?

January 14, 2014 at 09:57 AM | Permalink


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At last week's Sentencing Commission meeting, my first in a long time, I was struck by three pieces of information that again highlighted the irrationality of our harsh drug sentences. First, Commission staff noted that 97% of drug defendants are sentenced to prison. It is a sad statistic when you realize that the overwhelming majority of those defendants are non-violent, are represented by court-appointed lawyers because they do not generate sufficient profits from their illicit sales, and will be quickly replaced in their roles by others so that imprisoning them for such lengthy terms does not make a dent in the war on drugs. Second, Commission statistics show that the recidivism rates are almost identical for the early-released crack cocaine defendants as for other drug defendants showing that keeping people in jail for longer periods does not change what happens after their release. Third, 80% of defendants are still being sentenced within the guideline range proving that for the most part Judges are still tethered to the guidelines, which means that drug sentences are still controlled by prosecutors and their charging practices.

Every little bit helps so I am glad for this new proposal and the Commission deserves kudos. Its decision to forge ahead with the crack reduction while Congress continued to think on it showed that the Commission can lead the way on needed changes. Sadly, however, in the trenches, "plus ça change, plus c'est pareil" remains the order of the day and will continue until the Congress changes the mandatory minimum scheme.

Posted by: Carmen Hernandez | Jan 14, 2014 12:03:05 PM

"are represented by court-appointed lawyers because they do not generate sufficient profits from their illicit sales"

What relevance does this have?

Posted by: Jay | Jan 14, 2014 12:28:52 PM

What relevance does this have?

means they are low level offenders NOT high or mid level cartel types

Posted by: grant | Jan 14, 2014 3:18:55 PM

It doesn't necessarily mean they don't generate sufficient profits from sales or are "low level." It oftentimes means the authorities have seized all of their money and named it in a forfeiture allegation(this happens all day, everyday in federal court). It could also mean that no respectable defense attorney was willing to take $150,000 in rolled up cash as a retainer from a repeat felon who has not had a real job in twenty years.

More fundamentally, many (most?) of the court-appointed lawyers who are allowed to practice on a federal court CJA panel are very good and experienced lawyers.

Posted by: Not really | Jan 14, 2014 4:44:54 PM

the persons original comment..."they do not generate sufficient profits from their illicit sales"

'no respectable defense attorney was willing to take $150,000 in rolled up cash as a retainer from a repeat felon who has not had a real job in twenty years.'

typical stereotypical assumption but by no means the norm

'court-appointed lawyers who are allowed to practice on a federal court CJA panel are very good and experienced lawyers.'

actually a very accurate statement

Posted by: grant | Jan 14, 2014 6:57:02 PM

My father has been in prison for almost nine years due to a ridiculous sentence for a marijuana offense. His original sentence was 144 months, which was his first offense. He had never even had a traffic ticket. This legislation could potentially be a godsend for my family. The government did seize all of our money and left my family desolate. So to you people who assume that all people in prison for drug offenses are lazy people who "haven't held a job in 20 years." just know my dad held a job from the time he was 14 years old until the day he went to prison. Food for thought from someone who has suffered from the sentencing commission's sometimes underhanded and downright spiteful actions.

Posted by: Jessi | Jan 15, 2014 11:27:41 AM

Unfortunately the proposal doesnt help anyone above a level 38 nor does it help the ones already unable to use the fsa of 2010.

Semper Fi

Posted by: Chris | Jan 24, 2014 10:41:30 AM

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