U.S. Sentencing Commission Hearing on Drugs Minus Two Retroactivity

Post Date: June 10, 2014

Today the U.S. Sentencing Commission held an all-day hearing on drug guideline retroactivity. As you know, the Commission agreed to lower guidelines by two levels for most drug offenders coming into prison after November 1, 2014.

The question they tackled today is whether to apply that lower guideline to people already serving drug sentences. The Commission has estimated that about 51,000 prisoners could be eligible for lower sentences if the Commission approves retroactivity and their average sentence reduction would be about 23 months.

There were 16 witnesses at today’s hearing – including FAMM’s general counsel, Mary Price. We were most eager to hear the positions of the Department of Justice, the U.S. Probation Office, and the federal judges. In a nutshell, this is what they said:

Federal judges support retroactivity of the drug guideline. Judge Irene Keeley spoke on behalf of the Federal Judicial Conference and said that although retroactivity could result in motions from 51,000 prisoners, that was the courts’ “burden to bear.” She also called it a “moral issue” and said it would be fundamentally unfair to categorically deny retroactivity to prisoners.

The U.S. Probation Office basically said “we know how to handle retroactivity,” and pointed to crack reductions they have processed in past years.

The Department of Justice is a different story. The DOJ representative told the Commission that the DOJ supports “limited” retroactivity. DOJ thinks only the squeakiest clean drug prisoners should benefit – ones without any priors or guns or role enhancements. While that sounds semi-logical, it isn’t. That’s what judges are for – to determine who should benefit from retroactivity. That’s why we want judges to look at every applicant’s motion and decide whether the person is too dangerous to let out of prison.

Under the Department of Justice’s proposal, only 20,000 prisoners would be eligible to benefit from retroactivity. As you can imagine, FAMM and others who testified strongly oppose that position and argued against it. 

We know that criminal history frequently overstates how dangerous a person is; that testifying to your innocence at trial can trigger an obstruction of justice bump; that there is a difference between someone who points a gun at another person and someone who got a gun bump from a codefendant’s gun; and that every case is different and deserving of individual attention. That was the message FAMM’s Mary Price sent to the Commission when she testified.

My take-away from the hearing is that the Commission still needs to be persuaded to vote FOR retroactivity – WITHOUT LIMITATIONS. They need to hear from families and friends of those in prison who are not squeaky clean but still deserve to have a judge determine if they are too dangerous to release a little early.

The Commission needs to hear that applying the lower guideline retroactively is the kind of fundamental fairness that Americans believe in. If your car had a defect, the manufacturer wouldn’t just fix it for those who buy cars in the future; they would fix it for everyone who already owns the car. Applying the lower drug sentencing guideline is the same argument. And they need to hear about the children of prisoners who are being punished as much or more than the prisoner.  

We still have until July 7th to write to the US Sentencing Commission and tell them to make the drug guideline retroactive. Please do it! They will vote on whether to make it retroactive on July 18th. This is hugely important. Get involved. Get your families involved. Let’s make justice happen!

Best,

Julie

Julie Stewart
President and Founder
Families Against Mandatory Minimums