U.S. Sentencing Commission Update – Retroactivity Possible?

Post Date: August 30, 2013

Good news on the sentencing guidelines front!  On August 15, the U.S. Sentencing Commission decided which guideline changes they want to focus on in 2014 and one of them is to reduce all drug sentences by two levels!

As you might remember, each year the U.S. Sentencing Commission, which writes the federal Sentencing Guidelines, suggests changes to the guidelines. These are known as guideline amendments.  The process starts when the Commission publishes a list of proposed priorities – issues it wants to tackle – and asks the public for feedback on whether that list is right. Thanks to you, the Commission received more than 14,000 letters from the public! It’s important that the Commissioners know the public is paying attention to what they do and that their actions matter to thousands.  

The proposed guideline reform of “all drugs minus two,” is especially exciting because it has the potential to become retroactive, but not until November 2014, at the earliest.

For now, the Commission has decided to review and POSSIBLY amend drug sentencing guidelines “across drug types.” This means the sentencing guidelines for all drugs would be lowered by two full levels. For instance, drug quantities that used to trigger a level 26 would now trigger a level 24.  And, as you know, each guideline level corresponds to a sentencing range, so if the level goes down, so does the sentencing range.  This change is a longstanding FAMM priority that we have urged the Commission to act on. 

The reason we believe this guideline change could be made retroactive is because in 2007, the Commission lowered the federal crack cocaine sentence guideline by two full levels and made that change retroactive so that prisoners serving time for crack cocaine offenses could go back to court and request sentence reductions.  This happened again in 2010, when the Commission adopted new guidelines to comply with the Fair Sentencing Act of 2010 (FSA).  In both cases, federal prisoners were able to petition the sentencing court to lower their sentences to bring them in line with the new guidelines. These changes helped a lot of people.  The 2007 reforms enabled over 16,500 prisoners to receive sentence reductions averaging over two years.  The 2010 reforms have so far enabled over 7,300 prisoners to secure sentence reductions averaging 29 months.

WHAT HAPPENS NEXT? HERE IS WHAT WE HOPE WILL HAPPEN

  • At some point before Spring 2014, the U.S. Sentencing Commission will do two things: 1. Publish a proposed amendment to the federal sentencing guidelines that would recommend lowering all drug sentences by two levels, and invite the public to comment in writing about the proposal. We will be asking you to write in support of this amendment (and any others you support) at that time.
    2. Hold a hearing about potential federal sentencing guideline amendments, at which FAMM will testify.   
  • On May 1, 2014, the Commission will send to Congress the final set of guideline amendments the Commission recommends.  Congress has until November 1, 2014 to reject the changes. 
  • Probably before Nov. 1, 2014, the Commission will consider (if it has sent lowered drug guidelines to Congress) whether to make the lower drug guidelines retroactive.  It could: 1.  Hold a hearing; 2.  Solicit public comment. We will be asking you to write and support retroactivity if this happens.
  • On November 1, 2014, if Congress has not rejected the Commission’s proposed guideline changes, they will become law. 
  • If the “all drugs minus two” guideline becomes law on November 1, 2014, and if the Commission has voted to make the change retroactive, it could delay the start of retroactivity, as it has done in the past. This means that retroactivity of any drug guideline changes may not happen until late 2014 or 2015. Delaying retroactivity could ensure that the prisoners, prisons, courts, prosecutors and defense counsel have time to do the work necessary to ensure motions are submitted and considered in an orderly fashion.

This is a lot to absorb but it is very exciting! Whatever happens, we will keep you posted on all the developments and tell you when we need letters from you and your families. 

For now, just remember that nothing has changed yet and there are no guarantees that they will but we are going to do our best to see that something good happens for prisoners!   

FAMM will keep you updated on our website, www.famm.org.