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April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “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.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 at 01:07 PM | Permalink


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Are these amendments retroactive?

Posted by: Question | Apr 10, 2014 3:16:28 PM

Why does it not surprise me that people don't read the whole posting? On a legal blog.

Posted by: Wayne-O | Apr 10, 2014 6:42:28 PM

To answer the previous poster's question, I believe the retroactivity of the changes will be voted on by the committee later.

Posted by: tyler | Apr 10, 2014 6:43:12 PM

I don't understand something else. What qualifies these judges and lawyers to set national policy? What method will thy use to set the new standards? What validation will make these policies useful to public safety? What pilot testing will be done to determine the safety and effectiveness of the policy, and the absence of intolerable unintended consequences?

I think the answers will be:


None. None. None.

Is there any reason, the lawyer can't do things correctly? These exercises in stupidity represent unauthorized human experimentation at the population level, and a crime against humanity.

There is no acknowledgement anywhere in the post of the basics, that most adjudicated charges are fictitious, and therefore their sentences address a fictitious crime.

No acknowledgement of the fact that criminals do not specialize.

No acknowledgement that non-violent drug dealers are ultraviolent mass murderers of their competition and anyone who does not pay the bill.

No acknowledgement that upon release, the crime meter will whir at supersonic speed again, even if the efictitious recidivism rate is low, and that their customers, the criminals, will inflict $millions in damages each, if only to real estate prices wherever they stay, however briefly.

Posted by: Supremacy Claus | Apr 10, 2014 7:27:22 PM

For the record, the update regarding retroactivity wasn't posted when I posted.

Posted by: Question | Apr 10, 2014 8:08:03 PM

"What qualifies these judges and lawyers to set national policy? What method will thy use to set the new standards? What validation will make these policies useful to public safety? What pilot testing will be done to determine the safety and effectiveness of the policy, and the absence of intolerable unintended consequences?

I think the answers will be:


None. None. None."

SC: Why start now, we never did in the past?

Posted by: albeed | Apr 10, 2014 10:04:24 PM

Albeed: The result of this total incompetence? 20 million FBI Index felonies a year, 5 million being violent, and one of the highest murder rates in the First World. Crime is a huge anchor on the economy. People have to think about safety, instead of education. The value of their assets is dropped by the criminal next door. Why is the criminal protected by the lawyer? So the lawyer can generate some lousy government make work jobs.

Posted by: Supremacy Claus | Apr 10, 2014 10:55:14 PM

From what I can tell congress still has to vote on this, and it only goes up to level 38 which is the last level before enhancements.


Posted by: chris | Apr 11, 2014 11:10:25 AM

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