Answers to your Frequently Asked Questions about “Drugs Minus Two” Retroactivity

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.

FAMM will  also testify at the Commission’s hearing about retroactivity on Tuesday, June 10, where we will tell them to do justice and vote for retroactivity. Here is our written statement.

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.

26 Responses to “Answers to your Frequently Asked Questions about “Drugs Minus Two” Retroactivity”

  1. Lela Grimble

    Where do we send letters to the The Commision Hearing on Drugs Minus Two Retroavtivity? I also read on Facebook that there is a document/letter of support for this that can be signed. Time is drawing nigh; please respond asap.
    Thank you,
    Lela

    Reply
    • Chris B.

      Hello,

      I hope you got your answer.

      I believe they will make it retroactive with all the letters of support they received.

      In my spare time I keep federal inmates up to date on criminal justice reform issues.

      Reply
    • Kate Taylor

      Hi Lela,

      The deadline for submitting a letter has passed, but the good news is that the Commission received 65,000 letters about “Drugs Minus Two” retroactivity! They are going to vote on it this Friday — we don’t know what they will do, but we will be sure to post on our website and social media sites as soon as we know.

      Thanks!
      Kate, FAMM

      Reply
  2. April carver

    Do we have to hire a lawyer to file a motion for the judge to see if he is eligible or can we use our court appointed lawyer or do we just write a letter?

    Reply
    • Chris B.

      Hello,

      Now since the deadline is over but you could have just written a letter of support to the commission. Once they vote more information will be published on how the inmates will get the reduced time. It will help over 50,000 inmates. That is great news.

      Reply
    • Kate Taylor

      Hi April, the Sentencing Commission will vote this Friday, July 18 on whether to apply this reform retroactively to current prisoners or not (or to apply it to some prisoners and not others). We don’t know what they are going to go, but we will post an update on Friday, once we know. Either way, you shouldn’t have to pay for a lawyer to file a motion. Keep checking our website for updates.

      Kate, FAMM

      Reply
  3. John Laplante

    I was wondering what happen today on the two point reduction and did it go retroactive?

    Reply
    • Kate Taylor

      Hi John,

      The Sentencing Commission will vote on whether or not to apply it retroactively this Friday, July 18. We will be sure to post that information on our website as soon as we see what happens, so stay tuned.

      Kate, FAMM

      Reply
  4. Samantha Meroney

    I’m not really sure if my boyfriend is serving a mandatory minimum or not but he got 148 months for conspiracy to distribute meth less than 500 grams and is set to to be released in 2018, can you tell me id he is elgible?

    Reply
    • Kate Taylor

      Hi Samantha,

      We cannot tell you whether your boyfriend would be eligible because every case is different. If the Sentencing Commission does vote to make it retroactive (they’re voting this Friday, July 18), then we will know more about how prisoners who think they may be eligible will go about seeking relief. So be sure to check back and stay informed!

      Best,
      Kate, FAMM

      Reply
  5. carol richardson

    I agree that they are giving more time for non-violent offenses then murder cases. Can people here in the state of South Carolina get help ,or does the laws apply to this state. This is the good olde boy state I think organization such as yourself are afraid to make a stand here.They are giving blacks astronomical amount of time for drugs,putting them in conspiracy and gangs when their not just to make a federal case. And use Mexicans and other to do work for them,even though they sold drugs,they get less time or none. We need HELP!

    Reply
  6. Alexandra Escobar

    my brother is currently serving 14 years for a drug charge and he had a previous drug conviction 10 years ago in which he served 2 years. My bother was labeled as a manager of the organization regarding current case and I wanted to know if he would still qualify for the drug minus 2 law. I read above that career offenders wouldnt qualify and I would like to know if my brothers 2 cases would label him as a career offender. PLEASE HELP

    Reply
    • Kate Taylor

      Hi Alexandra,

      I don’t know if your brother is a career offender and we can’t predict whether he would benefit or not because every case is different. And remember, we still don’t know if the Sentencing Commission is going to make this reform retroactive or not — they will vote this Friday, July 18. If they do make it retroactive, we will then learn more about the process of how current prisoners who think they may be eligible to benefit can go about seeking that relief. Be sure to check back in and stay informed!

      Best,
      Kate, FAMM

      Reply
    • Kate Taylor

      Hi April,

      We don’t know. The Sentencing Commission votes this Friday, July 18. Be sure to check our website — we will post information as soon as we have it.

      Best,
      Kate, FAMM

      Reply
  7. amanda

    I think its crazy that some people kill and rape innocent people and its okay for them to get less time for it but people who do drugs get a outrageous amount of time in prison . which is a bit much. My dad has been in there since I was a 11 and will be in there until I’m 31 . therefore he has missed me growning up and becoming the young lady he wanted me to be . and he has 23 years withno parole or anything . I mean no young person should go with out there dad this long for something so little . I’ve had it so hard growning up .people have looked down on me for my dad being in prison and I’ve cryed my self to sleep almost every night wishes my dad would be out when I walk down the asle or have his grandkids . but hopefully y’all look at some of this guy or females and put some faith in them and let them come home to there love ones and family member .

    Reply
  8. Ofilia sanchez-manns

    To whom it may concern:
    My son has been in prison of drug trafficing and yes he needed to be punished. During hearing time, His attorney told judge quest he was not parpared to defend his clinet which was my son. Judge stated he did’nt care he was going to get sentenced aways. His attorney had a heart attack. My son done 18 years so far and got double jeoardy of four years he had already served and added 26 plus 4 = 30 years. people killed and due 15 to20 years if that. Colorado has Maijuana legal in there stat where he is severing time?? His daughter will be 18 in August this year. she could really use he father at time in her life. I would as a mother of 58 years old would finish his tme so he can come home . God bless each and everyone to make the right decision on lower senctence guidlines .

    Thanks,

    Ofilia Manns

    Reply
  9. vernell thomas

    my son is serving a 152 month sentence for drugs. did they pass the retroactive law on july 18th. if so, how will this affect him. he is requesting a 2 point reduction from the judge. is there any hope

    Reply
  10. Barry Gewin

    I have served my time, but for a contempt charge that added 6years of dead time. The original out date was 2012, but now it is 2018. If I could get 2points credit then maybe I could get out next year. I have served my time and some. Please help me get out of prison.

    Reply
  11. dorothy hyman

    just praying that my son will be coming home sooner than later,and for the rest of the persons that are in prison hope all goes well for each of them. .prayer does help too.

    Reply
  12. Fabian

    I am currently on federal probation,which means I’m still federal property!I was released six months before the bill has past,and did not get the benefit of the two point reduction!I am serving a three years probation.is there a possibility if they can cut my probation time off? Since I didn’t get the bill on time?

    Reply
  13. Malcolm Martin

    Are the drugs minus 2 already calculated into sentencing guidelines for someone convicted and sentenced in 2016 or can they still benefit from this law?

    Reply
    • Malcolm Martin

      I have a brother that entered a guilty plea in June 2016. Is the drugs minus 2 already calculated into the sentencing guidelines or can he file and get a time cut?

      Reply

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