Sentencing Commission Changes Bring Opportunities
by Derek Gilna
Although the recent retroactivity amendments by the U.S. Sentencing Commission are clearly beneficial to all drug defendants, certain questions have arisen that should be clarified. As with the Crack Law amendments, the extent of the relief granted will depend upon judicial interpretation before its full impact can be assessed.
However, unlike the Crack Law changes, there is no arbitrary cutoff date for relief which left many without sentence reductions. Additionally, the two-level reduction is across the board, for all drug crimes that did not involve crimes of violence. Mere possession of a firearm will not disqualify a petitioner unless it was immediately present at the crime scene. Also, for the first time, the Sentencing Commission has a target number of individuals that it would like to see released: 46,000, dwarfing the Crack Law release figures.
Petitions can be filed at any time, but no order for relief can be carried out until after November, 2014, for November, 2015 release. That tells me that the BOP is not ready to process the one-quarter of its prisoners who are going to be released. If the program is going to be successful, immediate changes to release processing procedures will have to be made by institution case managers and halfway houses. The US Probation Department, hit by layoffs, furloughing, and attrition of staff, will also see their caseloads increase dramatically as more prisoners are released.
The wild card in the whole process is the “Public Safety” issue, which must be considered by the court during resentencing. This is one area where astute representation will pay big dividends, because this is the subjective portion of the process. Release will NOT be automatic, so it will be important to have an advocate who can recommend the best course of action for your individual circumstances.
