Sentencing Commission Update

Retroactivity Takes Another Step Forward

By Derek Gilna

            On June 10, the U.S. Sentencing Commission took testimony regarding making the two-level reduction retroactive.  It has indicated that it will accept public comment on this issue through their email address of public_comment@ussc.gov. Pass this on to your friends and relatives.

            To recap, this round of reductions will only affect drug offenders.  White collar offenders’ possible reductions are still in the discussion stage, with no discernible timeline for adoption.  However, the two-level reduction first came under serious discussion by the Commission a little more than one year ago, so we will watch this closely.  Although there has been no mention of career offenders in this scenario, mandatory minimum sentences will definitely be eligible for reduction.

            The Commission has published two studies that indicate that retroactivity will be occurring, including one that discusses the impact of retroactivity on the length of sentences, and one that shows that people receiving sentence relief under the crack laws come back to jail at a lower rate than those who received no relief. The Commission has already done the math on who will be released, and it projects that up to 50,000 current prisoners would be released over a 6-year period, a very welcome number, to be sure. Almost 5,000 would be eligible for immediate release.  There’s something about that word, “immediate,” that caught my attention.

            As with the Crack Laws, modifications of sentence will be made based upon petitions filed under 18 U.S.C Section 3581(c)(2), will not be affected by the Booker decision, and will not require the defendant’s presence in court to gain relief. Therefore, filing a well-drafted petition to take advantage of this new sentence relief becomes even more critical

New Developments in Sentencing Relief

New Plan Increases Chances for Sentence Reduction

by Derek Gilna

It appears that I have been too pessimistic as to the chances for broad sentence reform in the near future, and the numbers of prisoners who could get relief.  On the heels of the announcement in the Spring that appeared to affect 5,000 to 10,000 prisoners, a similar impact to the first crack law reforms,  a new announcement appears to increase that number to 20,000. Some observers on the Sentencing Commission believe it could be as high as 50,000.  

This program would not have to go through the DOJ or its Pardon Office, or have to reviewed by the President, but instead would come from the US Sentencing Commission’s rule-making authority. Its decision would have the force of law unless Congress blocks it, which is highly unlikely. Congress has never voted to overturn any policy of the Sentencing Commission since its inception.

The Sentencing Commission has estimated that up to 50,000 prisoners could receive up to 2 years off of their sentences, which would require petitions to be filed to gain relief.  Since this program will be potentially much more wide-ranging than even the crack-law relief, it is advisable to file a petition as soon as you are eligible and final details are available.

The likelihood of sentence relief remain high, essentially because no major political players oppose it. The Obama Administration can’t be blamed by their opponents for a decision of an independent agency like the Sentencing Commission, and Congress estimates that the move would save well over 1 billion dollars a year.  Only certain elements of the Justice Department and assistant US attorneys oppose the new, broader, sentence relief, but fortunately they don’t get to vote on it.