DOJ Endorses Guideline Reduction in Federal Drug Cases

Attorney General Eric Holder testified today at a hearing of the U.S. Sentencing Commission on proposed amendments to the sentencing guidelines, one of which is to lower drug sentencing guidelines by two levels. He supports the change. Once approved by the Commission, unless Congress rejects the proposed amendments, it will go into effect Nov. 1. In a press release today, DOJ says:

Until then, the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing.

There are 216,000 federal inmates. The Bureau of Prisons says it is housing 173,661 of them. Of the 158,000, 98,554 are serving time for drug offenses. (The next biggest category is immigration offenders -- 20,862 inmates.)

Here is AG Holder's written testimony. Here is the Federal Defender's written testimony, presented by AFPD Molly Roth.

The problem is, of course, the reduction would not affect mandatory minimum sentences. The only way out from a mandatory 5, 10 or 20 year sentence remains limited to those who either cooperate with the government or are eligible for the Safety Valve. In order to qualify for the safety valve, a defendant cannot have more than one criminal history point. A DUI, for example, is one point. If the person violates his probation, or is charged with the drug offense while on probation for a DUI, he or she will have more than one point and be ineligible.

Since mandatory minimums trump the guidelines, the change won't affect those charged with a mandatory minimum whose guidelines are now less than 60, 120 or 240 months, unless they either cooperate or have no more than one criminal history point and meet the other conditions.

A bill is pending in Congress (S. 1410) that would amend the Safety Valve, to make more defendants eligible for it. It has already been weakened, and would only apply to some of those with up to two criminal points. It passed the Senate Judiciary Committee in January, 2014, but has yet to be voted on by the full Senate. DOJ has supported expanding the safety valve.

The vast majority of drug offenders are not violent and do not engage in violence in prison. According to BOP's statistics as to drug offenders, provided to Federal Defenders last month (see Molly Roth's testimony):

[O]ver 50 percent (52.1%) were housed in administrative, low, or minimum security facilities. About a third (32.9%) was housed in medium security facilities. Only 8.5 percent were housed in high security facilities.81 Only 11.8 percent had been found guilty of a violent prison rule infraction and even less (8.5%) were a member, associate or affiliated with a prison gang.

Here is the Sentencing Commission's announcement and reasons for the proposed reduction, issued in January.

While the Sentencing Commission's amendment, and DOJ's support, is a step in the right direction, so much more reform is needed to make our sentencing laws fair and reduce the economic drain on all of us caused by our over-reliance on incarceration.

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  • Display: Sort:
    Non violent drug offender, what is the (5.00 / 1) (#1)
    by Mikado Cat on Fri Mar 14, 2014 at 01:46:54 AM EST
    point of any prison time? Should be real monitored parole and treatment.

    Bit on NPR I heard today suggested the bills have bipartisan support, maybe it has a chance?

    Prison should not be the first choice for everything, it should be the last choice for only the most problematic offenders.

    OTOH prison time is the bargaining chip to get cooperation.

    If Holder were serious about sentencing reform (5.00 / 2) (#3)
    by scribe on Fri Mar 14, 2014 at 11:43:08 AM EST
    he could just modify the charging guidelines to make it much harder for local US Attorneys to inflict the mandatory minimum charges upon defendants, and favor charging defendants with crimes more subject to the "safe harbor" provisions.

    While seeking to get the statutes modified.

    Or, alternatively, he could start charging the cokehead kids of congresscritters under the mandatory minimum statutes as if they were poor minority people.

    Guidelines changes? (5.00 / 1) (#4)
    by Alexei Schacht on Sat Mar 15, 2014 at 04:53:21 PM EST
    There is no parole in federal criminal cases so parole has nothing to do this conversation, unless the States are also being discussed, something over which AG Holder has no control.

    As far as these Guidelines changes go, they will help only the tiniest sliver of defendants since neither the mandatory minimums nor the maximums will be altered.

    Many defendants, even those with no violence in their first cases will be above the mandatory minimum since the Guideline recommended sentences are still so high.

    People who say this is designed to encourage guilty pleas and cooperation are right -- and it serves both of those purposes. There are few federal narcotics trials and MANY cooperators.

    This system "works" and most voters either like it or are unaware of it or don't care one way or another.

    Questions: (none / 0) (#2)
    by jbindc on Fri Mar 14, 2014 at 07:12:38 AM EST
    Since this change in policy is really related to drug trafficking sentences, and not merely drug possession sentences - is there a breakdown of how many people are in prison or jail for mere possession? (I can't seem to find a breakdown, even on BJS).

    Also - is there a further breakdown of the data that show: 1) those incarcerated for mere possession because they pled down to lesser charge of possession in exchange for the dropping of other charges, and 2) how many prisoners were incarcerated on first time possession offenses?

    Thanks for any more info or links you can guide me to.

    statistics (none / 0) (#5)
    by Alexei Schacht on Sat Mar 15, 2014 at 04:55:18 PM EST
    The United States Sentencing Commission website has loads of helpful statistics at www.ussc.gov.