Answers to Your Frequently Asked Questions about Drugs Minus Two

Post Date: May 2, 2014

Take Action: Tell the Commission to make drugs minus two retroactive!


What are sentencing guidelines?
Sentencing guidelines are recommended rules for judges to follow when determining a sentence for a conviction in federal court.  The guidelines look at the facts that led to the conviction. In the case of drugs, the guidelines look at two factors:  the type and quantity of drugs, to come up with a starting point.  Then the guidelines tell judges to consider other features, including enhancements or sentence reductions based on a defendant’s role in the offense and other circumstances.  Once the judge has used the guideline manual to come up with a recommended guideline sentence, the judge then consults a federal law to test whether the guideline sentence is enough but not too much to punish, deter, incapacitate and rehabilitate the defendant. If the judge finds the recommended guideline sentence is greater than necessary (or in some cases, not sufficient), he or she is free to “vary” below or above  the recommended sentence.

What will “drugs minus two” do to change the sentencing guidelines?
Drugs minus two will lower the recommended guideline sentences for most drug defendants by two levels in the sentencing guideline “table” of recommended sentencing ranges for drug crimes. This means that, starting on November 1, 2014, the sentencing guidelines will advise judges to start the job of calculating a sentence two levels below the current one.  That means they will use as the starting point a lower recommended sentence that the current recommended sentence. 

Does drugs minus two affect mandatory minimums?
No.  Mandatory minimums are established by Congress and are unaffected by changes to the sentencing guidelines. The drug mandatory minimums require certain fixed sentences for fixed amounts of drugs. For example, the mandatory minimum for trafficking 28 grams of crack cocaine is five years.  The Sentencing Guidelines in turn are the recommended sentences for drug crimes when the drug amounts are lower or higher than the precise drug amounts that trigger mandatory minimum sentences.  For example, right now the recommended guideline sentence for 115 grams of crack cocaine is 78-97 months.

So the guidelines aren’t mandatory?
Yes, they are advisory; they provide recommendations to judges.

If the guidelines aren’t mandatory, why does it matter what they say?
The guidelines, though advisory, continue to exert a strong influence on the ultimate sentence a judge imposes.  Judges follow the guideline sentence (or follow the government’s recommendations for a lower sentence) in roughly 80% of cases.

Who’s affected by drugs minus two?
Approximately 70% of drug defendants subject to the sentencing guidelines will be affected by drug minus two.  Among those not affected are defendants with the highest and lowest drug quantities.

I read somewhere that this change will reduce prison sentences by 11 months. Is that true for everybody?
No, that is an average sentence reduction.  How much lower the sentence will be will depend on the starting point, which in turn is based on three things:  the type and quantity of drugs and the amount of criminal history the defendant is found to have.

Why doesn’t this apply to prisoners?
Drugs minus two is a change to the sentencing guidelines and the guidelines are used when sentencing a defendant.  When guidelines are reduced, those reductions do not apply to people already in prison.  But, the Sentencing Commission has the power to make lowered guidelines “retroactive.”  The Commission has decided to consider making drugs minus two retroactive and is accepting public comment on retroactivity until July 7, 2014. The Commission will also be holding a hearing about the issue on June 10, 2014 and will vote on it on July 18, 2014. If the Commission does make drugs minus two retroactive, prisoners will be able to ask the court that sentenced them to reduce their sentence by two levels just like people who will be sentenced after the lower guideline goes into effect on November 1.

What does this mean for other reforms, like the smarter sentencing act, and clemency?
The Sentencing Commission, just like members of Congress and the Department of Justice, is doing what it can to reduce the overburdened federal prisons while at the same time working to reset criminal penalties to make them more fair and proportionate to the crime.  The Commission’s work to reduce all drug sentences by two is a modest reform that puts the Commission at the criminal justice reform table with the legislative and executive branch actions.

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.

5 Responses to “Answers to Your Frequently Asked Questions about Drugs Minus Two”

  1. iris liliana salinas

    Mi faliliar esta en una cárcel federal con una condena de 15 años, en Abril 15 del 2015 será su término de sentencia el podrá salir en el programa de menos dos retroactiva,

    • iris liliana salinas

      Mi faliliar esta en una cárcel federal con una condena de 15 años, en Abril 15 del 2015 será su término de sentencia el podrá salir en el programa de menos dos retroactiva,

  2. Carol cain

    1. If a prisoner is being resentanced does the law apply to him or does the retroactive law only apply to him?
    2. When you talk about the limitations to the law and you mention role enhancements, is this pertaining to only violent crimes or role enhancements in a non-violent crime?
    3. If your resentanced before November 1st, can the judge still apply the law to your case, if in fact it applies to the prisoner, or will the prisoner have to reappear in court to have this law applies to him?