Post Date: June 6, 2014
What is Drugs Minus Two?
“Drugs minus two” is a short-hand way of describing a change in the federal sentencing guidelines, recently approved by the U.S. Sentencing Commission, that will lower many federal drug sentences by an average of 11 months for people sentenced on or after November 1, 2014. Here is more information about Drugs Minus Two – take a look at it before reading the rest of this document, if you haven’t already.
Does Drugs Minus Two help prisoners?
It doesn’t yet, but it could. First, the U.S. Sentencing Commission voted to lower drug guidelines for all people sentenced after November 1, 2014.
But the Commission also has the authority to make that change retroactive so that it would help people who are already in prison and are serving a guideline sentence for a drug offense. The Commission is in the process of deciding whether to do that.
What is Retroactivity?
When the Commission makes a new guideline sentence retroactive, prisoners serving a sentence for that crime can write to the court and request to be resentenced under the new lower sentence. The request is sometimes called a “section 3582 motion.” The judge then checks to be sure the prisoner is eligible for retroactivity and reminds herself about the prisoner’s conviction and other factors. Judges also consider whether releasing the prisoner early would harm public safety. Then the judge rules on the motion.
Has the Commission made other reduced guidelines retroactive?
Yes. That’s the good news. It’s been done before and on a big scale, most famously in 2007 and in 2010. In 2007, the Commission lowered crack cocaine sentences by two guideline levels and then made that change retroactive. As a result, 16,500 prisoners serving prison terms for crack cocaine offenses received shorter sentence by an average of 26 months. Another reduction in crack cocaine sentences that went into effect in 2010 was also made retroactive. Since then, 7,500 prisoners serving crack sentences have received new sentences that are, on average, 30 months shorter. As you can see, lots of people went home earlier than they otherwise would have.
When will the Commission vote on making Drugs Minus Two retroactive?
The vote is scheduled for July 18, 2014, at the U.S. Sentencing Commission in Washington, D.C. The meeting is open to the public and we urge everyone who can attend to be there. We do not yet know the time of the meeting.
If the Commission makes Drugs Minus Two retroactive, how many people would be eligible for the reduction and how much time will they get off their sentences?
The Commission estimates that over 51,000 prisoners would be eligible to apply for lower sentences. The average prisoner will see their sentence reduced by 23 months. Here is a memo from the Commission that you can look at. Hint: pages 7-8 summarize the findings.
If the Commission makes Drugs Minus Two retroactive, how much time will people get off their sentences?
The Commission estimates that on average, prisoners could have their sentences shortened by 23 months. Of course, because that’s the average, some will get more and some will get less. Go to page 15 in the Commission’s memo (here) for a chart showing how much time people might get off their sentence.
If the Commission makes Drugs Minus Two retroactive, would it help all prisoners serving sentences for drug offenses?
Unfortunately, no. Over 100,000 people are serving time in federal prison for drug crimes. But only 51,000 would be considered eligible for a sentence reduction.
Why so few?
1. One big reason is because Drugs Minus Two does not lower sentences for people serving mandatory minimums for drug crimes. Anyone serving an exact 5 or 10 year sentence, is unlikely to benefit because those are mandatory minimum sentences, not guideline sentences. Mandatory minimum sentences are controlled by Congress (not the Sentencing Commission) and are not affected by changes to the sentencing guidelines. We are working to lower the mandatory minimums by supporting the Smarter Sentencing Act. You can learn more here.
2. Another reason is because guidelines for very high and very low drug quantities are not affected by Drug Minus Two. We did not agree with the Commission’s decision to do that, but couldn’t stop it. Prisoners who were sentenced at or below what is called Base Offense Level 12, and at or above Base Offense Level 38, will not be affected.
3. Drugs Minus Two will not affect people sentenced as career offenders. Even though they have drug offenses, the Career Offender guideline is a different guideline and is not affected by Drugs Minus Two. Again, we strongly disagree with the Commission’s decision, but could not change their minds.
If the Commission makes Drugs Minus Two retroactive, will people who received the Safety Valve be eligible?
Yes. Everyone whose drug sentence was calculated using the guidelines between Base Offense Levels 13 and 37 will be eligible to seek the reduction.
If the Commission makes Drugs Minus Two retroactive, will people who received a lower sentence due to substantial assistance be eligible?
Yes. Everyone whose sentence was calculated using the guidelines between Base Offense Levels 13 and 37 will be eligible to seek the reduction.
If the Commission makes Drugs Minus Two retroactive, will people serving mandatory minimum sentences be eligible for a sentence reduction?
No. Mandatory minimum sentences are controlled by Congress (not the Sentencing Commission) and are not affected by changes to the sentencing guidelines. We are working to lower the mandatory minimums by supporting the Smarter Sentencing Act. You can learn more here.
Why would the Commission consider making Drugs Minus Two retroactive?
One very big reason is because the Commission is trying to do its part to lower the federal prison population, which has grown bigger than the prisons can hold and is taking too much money that could otherwise be spent on crime prevention and other important Justice Department work. If Drugs Minus Two is made retroactive, it would save 83,525 “bed years” which translates into a savings of between $866 million and $2.4 billion over time. See page 8 of the Commission’s impact memo to learn more.
If the Commission makes Drugs Minus Two retroactive, when would people get out?
Prisoners would be eligible to apply for retroactivity after November 1, 2014. The Commission has calculated that 4,571 prisoners would be able to ask to be released immediately, and roughly 12,500 people would be eligible for release in the first year. The rest would be spread out over a number of years, depending on how much of a reduction they receive. See page 16 of the Commission’s impact memo to see how it would work.
Why wouldn’t the Commission make Drugs Minus Two retroactive?
It is hard to tell, but we think one of the concerns has to do with the large numbers of people who will be eligible. It might prove a burden on the courts, prosecutors and probation officers. But, crack cocaine retroactivity (see above) involved large numbers of prisoners and the courts and parties handled the workload very well. FAMM believes justice should not be a matter of convenience.
Also, some people worry that releasing so many drug prisoners early will endanger public safety. The Commission has some good news about that. They published a report about people who were released early from prison when crack cocaine sentences were reduced by two levels in 2007. That report clearly shows that those prisoners don’t reoffend any more than people who served their entire sentences and did not get released early. See page 3 of this report.
Is the Commission going to make Drugs Minus Two retroactive?
We don’t know. We hope so. We and others are working hard to convince the Commission to do the right thing and make it retroactive. But there are some important people opposed to it. So, we need all the help we can get. You can help by writing to the U.S. Sentencing Commission and saying you want Drugs Minus Two made retroactive – here’s how.
What is FAMM doing?
FAMM is working every angle to make this amendment retroactive! This is a huge priority for us. We are strategically working behind the scenes with top level allies to build pressure for retroactivity. We are also making sure the media understands the significance of this vote on the lives of prisoners, on the economy (a $2.4 billion savings) and in the interest of justice.
And, of course, we are urging prisoners and their loved ones to write to the Commission to tell them to do the right thing!
Do you have a question that was not answered here? Post it in the comments below and we’ll do our best to answer it.