What The Daily Caller Gets Wrong About All Drugs Minus Two - FAMM


What The Daily Caller Gets Wrong About All Drugs Minus Two

Categories: Newsroom, Press Release

Mike Riggs, here. In January 2010, I helped launch The Daily Caller, a conservative news website founded by Tucker Carlson, and stayed on staff through 2012. While I was there, and in the time I’ve been at FAMM, the Caller has run many smart, tough, and fair stories about criminal justice reform. Today’s piece by Kerry Pickett–“Thousands Of Violent Felons To Be Released In November Under New Sentencing Guidelines“–is not one of them. 

Normally I’d address my concerns through back-channels, because it’s the polite thing to do when a reporter runs with claims made by members of Congress without doing additional reporting. But the piece has been linked by the Drudge Report, meaning it’s going to be read by thousands of people. Perhaps more. And that means thousands of people (perhaps more) will be obscenely misinformed about an important policy change before the Caller gets around to correcting the piece (this isn’t the Caller’s fault, it’s simply the nature of the Internet; nobody re-reads a viral story to see if the publication made corrections). Ergo, I’m doing a paragraph-by-paragraph fisking. 

We’ll start with the beginning: 

Thousands of dangerous federal prison inmates will be released in November as a result of the U.S. Sentencing Commission’s decision to lower federal sentencing for all drug trafficking and distribution crimes.

Due to a change to the federal sentencing guidelines passed last summer, roughly 40,000 nonviolent federal drug prisoners are eligible to petition for re-sentencing. But re-sentencing is not automatic, nor do the changes cover “all” drug trafficking offenses.

To get re-sentenced, prisoners need good behavioral records during their time in BOP custody, and must be unlikely to pose a threat to public safety. The public safety aspect is not an afterthought; federal judges are required to determine the public safety impact of releasing a prisoner early. And according to data released by the Commission in June 2015, federal judges are doing exactly that. Over 2,000 prisoners have been denied re-sentencing under All Drugs Minus Two; of those, 58 prisoners have been specifically denied a reduction due to the threat they pose to public safety, and 42 have been denied due to post-conviction or post-sentencing conduct. Judges don’t make these determinations alone, either. Federal probation officers are brought in, as are BOP officials and federal prosecutors. The re-sentencing process is heavily checked and balanced. 

According to House Judiciary Committee Chairman Bob Goodlatte and Senate Judiciary Committee Chairman Chuck Grassley, the release will include inmates with violent criminal histories who committed crimes involving assault, firearms, and even murder.

Rep. Goodlatte and Sen. Grassley have actually said this. But they haven’t named names. I think they should. Name me a murderer in federal prison who’s going to be released early. Name me one. (The two paragraphs that follow the above paragraph are also “true,” in that they simply repeat the claims Grassley and Goodlatte make.)

In the words of Jay-Hova, on to the next one: 

The Sentencing Commission made a two-level reduction, through Amendment 782, in the base offense levels for all drug trafficking and distribution offenses that could impose mandatory minimum sentences in early 2014. Those reductions are retroactive and apply to every inmate in the custody of the the Bureau of Prisons. Thousands of inmates filed motion for sentence reductions in their jurisdictions within the last year.

Amendment 782–which we here at FAMM refer to as All Drugs Minus Two–does not affect mandatory minimums. Mandatory minimums are statutory, meaning only Congress can change them. Amendment 782 affects guideline sentences, which are the sentences imposed below, between, and above the various mandatory minimums. These sentences are discretionary, in that judges don’t have to give them (though the vast majority do stick to the guidelines).

Furthermore, the amendment stands to affect only 40,000 drug prisoners, less than half of the total BOP drug prisoner population, and certainly not “every inmate in the custody of the Bureau of Prisons”–which is just north of 200,000 people. Click on the USSC link above, and you’ll see that of the 2,000 motions that have already been denied, 1,596 denials were the result of prisoners simply not being eligible for All Drugs Minus Two. 

Grassley and Goodlatte initially sent a letter to the Commission when changes to the sentences were first being considered last year, but say their requests for further information were ignored.

I can’t speak to the interactions between members of Congress and the USSC, but I can say the Commission held several public and well-advertised hearings in 2014 at which members of local and federal law enforcement testified, that the Commission released a very detailed impact assessment well in advance of both of its votes, and that it held a public comment period. 

As always, FAMM is happy to talk to reporters about complicated issues like the federal sentencing guidelines. We certainly would’ve been happy to help Kerry. Still are, in fact! Simple as sending an email to mriggs@famm.org.