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Sentencing Commission Makes Reduction in Drug Sentences Retroactive

Update: Here is Attorney General Eric Holder's press release endorsing the Sentencing Commission's action.

At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system.

The U.S. Sentencing Commission voted today to make the upcoming two level decrease in drug offense levels under the sentencing guidelines retroactive to cover those already serving sentences. Here is the press release.

The effective date for reductions for those already serving sentences will be delayed until November, 2015, so that courts can consider public safety risks. In other words, the retroactive application is not mandatory. Inmates can begin filing motions in November, 2014, but the reduction won't go into effect until November, 2015.

[More...]

Here is the text of the amendment. Congress has until November 1, 2014 to reject it. If it does not, the amendment will go into effect.

As to those who are already serving sentences, the reduction will not lower a sentence below the mandatory minimum 5, 10, or 20 year threshold if the offender was not exempted from the mandatory minimum due to cooperation or application of the safety valve at the time of sentencing. So not everyone will be eligible.

In other words, if a defendant received a 10 year mandatory minimum sentence, and with the amendment, his or her guideline range now falls below 10 years, there is no relief because the mandatory minimum trumps the guidelines. For a defendant subject to the 10 year mandatory minimum who received more than 10 years, his sentence can be reduced, but not below 10 years. (Only those who cooperated with the government or were eligible for the safety valve when sentenced, exempting them from the mandatory minimum, can be granted a reduction below the mandatory minimum through the amendment. )

As to current cases, even though not yet in effect, the two level reduction has been applied by courts since March when DOJ directed prosecutors to request it.

As to how many will be affected by retroactivity:

An estimated 46,290 offenders [would be] eligible for reduced sentences. These offenders would be eligible to have their sentences reduced by an average of 25 months or 18.8 percent. They would still serve 108 months, on average.

Bills are pending before Congress to reduce mandatory minimum sentencing laws and expand application of the safety valve. This is sorely needed. The House version is better than the Senate version. The House version would make the safety valve applicable to those with a Criminal History Category of II (up to 3 points.) The Senate bill (due to an amendment when it was introduced) limits the safety valve to those with no more than 2 criminal history points, which is barely a change at all from the present law limiting it those with 1 criminal history point.

Today's action is a great accomplishment, however, more remains to be done. Congress needs to eliminate or revise the draconian and unjust mandatory minimum laws for drug offenses. It also needs to reduce the disparity between crack and powder cocaine offenses from the current 18:1 ratio to 1:1.

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