September 7, 2012
In July, we asked you to contact the U.S. Sentencing Commission and let them know that fixing the drug guidelines should be a priority this year. We then followed up with a note urging you to share your thoughts on the Commission’s proposed priorities.
We are grateful that so many of you responded. The Commission received over 1,000 comments, many from you and your family members who joined FAMM in sending letters to the Commission in support of adding the so-called “all drugs minus two” amendment as a priority and other priorities you care about. Unfortunately, the Commission recently announced its final priorities for the year and “all drugs minus two” did not make the list.
Some of the other priorities adopted by the Commission might be of interest to you. For example, the Commission approved plans to:
(1) Work with Congress and others to advance the recommendations the Commission made last year about mandatory minimums. The Commission published a report on mandatory minimum laws last year that contained a number of positive proposals for reform, such as broadening the safety valve, making gun mandatory minimums less severe, and reducing the severity of non-contact child pornography offenses.
(2) In the wake of United States v. Booker - the Supreme Court decision that said the Sentencing Commission’s guidelines are advisory, not mandatory - the Commission plans to study sentences and issue a report possibly recommending that Congress pass laws governing the guidelines. FAMM’s fear is that the Commission will continue to try to limit judges’ ability to depart from the guidelines. If the Commission continues this effort, we will strongly oppose it.
(3) The Commission plans to conclude its review of child pornography offenses and issue a report and possibly recommendations to Congress. Sentences for these offenses have skyrocketed over the past 15 years, driven mostly by Congress and not by empirical evidence. In recent years, many judges have shortened sentences in these cases when possible.
(4) The Commission plans to continue its review of the sentences for economic crimes, especially sentences that come from application of the fraud guideline. The Commission may consider amending the guidelines in this area. FAMM believes that calculations using the fraud guideline give too much weight to a single factor - the amount of loss - that doesn’t reflect an offender’s actual culpability. That guideline also has overlapping, redundant enhancements that can drive sentences very high.
We want to remind you that, just because the Commission chooses to work on a particular priority, it does not mean that the guidelines will change or that people in prison will get shorter sentences. When the Commission chooses to work on a priority, it usually takes a while – sometimes years – before the Commission makes changes, if any, to the guidelines. Even then, very few guideline changes reduce sentences, and very, very few of those are made retroactive. And remember, the Commission cannot change mandatory minimum sentences – only Congress can do that, by passing new laws.
A final word: I am disappointed that the Commission did not respond to our call to make fixing the drug guidelines a priority. I am sure many of you are, too. But I hope you will not feel that your time in writing to the Commission was wasted. It wasn’t. Your participation is very important. The Commission and Congress and anyone with a say over sentencing policy needs to hear from you if we are going to succeed in reforming our sentencing laws.