No Time to Waste on Sentence Relief

Don’t Wait for Congress to Act to Seek Sentence Relief

By Derek Gilna

            This past week I have seen many inquiries from individuals who wrote something to the effect of this: “I will wait for Smart Sentencing and then file something,” or has “Smart Sentencing been passed?”  If the past several years are any indicator of the future, the time to seek relief is now, period.

            Unfortunately, quick action on sentence relief or reform will not come from Congress, who is more interested in the November elections than they are in a prisoner’s problems.  All relief that has come about recently has been initiated by the Sentencing Commission, the Courts, or the Executive Branch.  As to the latter, does anyone think that the next Administration will be more favorable to prisoners than this one?  I didn’t think so.  Those with plans to file for executive clemency, pardon, or commutation should do so without delay.

            That’s not to say that the “Smart Sentencing” bill will not be helpful, but it has only passed committee, and no votes by the full Congress are scheduled at this time.  Nothing will happen, if it does happen, until after the November elections.  It will also take time to implement that bill even it passes immediately.  Also remember that the language of the bill might be changed dramatically and not necessarily for the better, if and when it does pass and get signed into law.  And, if it doesn’t pass until a year or two years from now, will the next President even sign it, or will the political pressure from the private prison industry, guard’s unions, and other decision-makers opposed to reducing prisoner counts, and with it, prison jobs in their legislative districts and states.

            Even those of you with life sentences and career criminal designations should have hope, because the environment for prisoner relief has never been more propitious. There are many options for potential relief. However, if you wait for Congress to make good things happen on your behalf, I suspect you will be disappointed.

Two Level Reduction Now Retroactive

U.S. Sentencing Commission Finally Makes it Official, Approves Retroactivity

By Derek Gilna

It’s always hard for the federal government to say it’s sorry, especially when its mistakes ruined tens of thousands of lives, gutted inner-city neighborhoods, and cost taxpayers billions of dollars, but the Sentencing Commission’s decision to give non-violent drug offenders substantial sentence reductions is a move in the right direction. This action that will affect at least twenty percent of current federal prisoners and thousands of others currently awaiting sentencing, not to mention their families, by making the two-level reduction of drug levels retroactive.

Attorney General Holder said, “This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden of our overcrowded prison system.” Senator Patrick Leahy, one of the sponsors for sentence relief legislation still pending in the U.S. Senate, commented that the changes were “an important step toward responsibly addressing our unsustainable prison population.”

Bowing to the admittedly dysfunctional governmental agency, known as the Bureau of Prisons (BOP) now tasked with implementing this landmark change, the Commission delayed full implementation until November of 2015. Prison officials and halfway houses now have months to make adjustments to handle the flood of soon-to-be-released prisoners.

However, the decision also reflects that the federal court system will also need close to a year to review and adjudicate the thousands of case filings that can be filed immediately. The number of filings under this new reduction will dwarf the filings made under the crack law. Petitions filed this year will still take months to work their way through the courts before formal release orders can be issued.

What the vote means is that the amount of time a federal drug prisoner received at sentencing will not be his “out date.” However, this will not be an automatic process, any more than crack law releases were automatic. The Commission’s order is still subject to interpretation by the courts, and possible objections from prosecutors as to whether or no the individual is eligible for relief.