The U.S. Sentencing Commission (hereafter USSC) has proposed an amendment to the Federal Sentencing Guidelines that would reduce the sentencing guidelines across the board for set quantities of drugs. Congress has until November 1, 2014, to approve (or not) the amendment, and in the meantime, the USSC is considering whether or not to make the amendment retroactive so that inmates sentenced under the old guidelines can file motions asking their original judge to have their sentences reduced. Otherwise, if it is not retroactive, it will only affect defendants who are sentenced after November 1 of this year. Courts cannot apply the new drug guidelines retroactively unless the USSC explicitly makes it retroactive. (See our “Drug Minus Two” page for more questions about this amendment and what the process of getting a sentence reduction would look like.)

At the end of May, the USSC released a report analyzing the impact that making the amendment retroactive would have. Then, on June 10, it held a hearing to discuss whether or not to make it retroactive. (Update: in early July the USSC announced that on Friday, July 18, 2014, it plans to “vote on whether or not to retroactively apply, in whole or in part, the amendment reducing the drug quantity table by two levels.”) Here we will discuss the numbers of inmates who will be affected by the outcome of this discussion according to the numbers in the USSC analysis.

If the amendment is made retroactive without qualification, the USSC analysis estimates that 51,141 inmates would be eligible for a sentence reduction. (That number represents 23% of the total U.S. Federal prisoner population.)

However, at the hearing on June 10, the DOJ (Department of Justice) proposed that the amendment would only apply retroactively for some groups of inmates in order not to overload the courts. The DOJ suggested the amendment only apply retroactively for prisoners who meet the following qualifications:

  1. The prisoner is in Criminal History Category I or II.
    This restriction alone would nearly halve the number of eligible inmates to 27,124, according to the USSC analysis.
  2. The prisoner did not get a mandatory minimum due to a firearm under section 924(c).
    According to the USSC analysis, about 5400 of the 51,141 eligible had this mandatory minimum apply when they were sentenced.
  3. The prisoner did not get an enhancement for possession of a dangerous weapon.
    According to the USSC analysis, about 10,290 prisoners (20% of the 51,141 eligible) had a weapon specific offense characteristic.
  4. The prisoner did not get an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2).
    (The USSC analysis does not give a number for this category.)
  5. The prisoner did not get an enhancement for engaging in an aggravating role in the offense pursuant to §3B1.1.
    According to the USSC analysis, almost 8000 of the 51,141 eligible received this enhancement.
  6. The prisoner did not get an enhancement for obstruction or attempted obstruction of justice pursuant to §3C1.1.
    According to the USSC analysis, about 2500 of the 51,141 eligible received this enhancement.

Of course, the above criteria may exclude some of the same people. For instance, it is conceivable that everyone excluded by (2) – (6) was in Criminal History Category III or above when sentenced, so that the number of prisoners eligible under the DOJ’s proposal would still be 27,124 (although this is unlikely). The USSC analysis was prepared before the DOJ’s proposal, so it does not have an estimate of the number eligible if the DOJ’s suggestions are followed.

Others who spoke at the USSC hearing on June 10 supported full retroactivity and were not in favor of the DOJ’s proposal. A representative for the judges who would be seeing these petitions said that they supported retroactivity, but suggested that no inmates be released from prison under the new, retroactive guidelines until May 2015 so that courts and probation offices could prepare for and manage the sudden increase in their workload. Others pointed out that studies suggest that those prisoners excluded by the DOJ’s proposal, particularly by the criminal history category criterion, would not necessarily pose a risk to public safety if they were released earlier. A common feeling among those who testified at the hearing was that it would be unfair to not make the amendment retroactive without qualification. Thus, at this writing, before the USSC votes on retroactivity, we are optimistic that the amendment will be made retroactive to some degree. Yet it remains to be seen how many inmates will actually be affected and when the retroactive effective date will be (that is, the date courts will begin ruling on motions for sentence reductions).

Here are some other notable statistics in the USSC analysis on the 51,141 inmates who would be eligible for a sentence reduction if it becomes retroactive across the board:

  • 20% were sentenced in Texas. Florida is second with 6.7%. (Every state and district has some, however.)
  • Nearly 44% are Hispanic; nearly 31% are black; and 23% are white.
  • 25% are not U.S. citizens.
  • In most of these cases, the primary drug type for which the prisoner was convicted is recorded. Where it is recorded, for almost 28% of eligible prisoners, the primary drug type is methamphetamine, and for 27%, it is powder cocaine. For nearly 19%, the primary drug type is crack cocaine. (Marijuana and heroin are in fourth and fifth place, respectively.)
  • 35% of these prisoners would be eligible to get a year or less off their sentences, and 34% would be eligible to get between 13–24 months off their sentences. Less than 5% would be eligible to get over 5 years off their sentences.
  • The report estimates that 12,749 prisoners would be eligible for release in 2015 if the amendment were retroactive. If the amendment does not become retroactive, only 4787 prisoners (out of the 12,749) would be released in 2015 when their sentence ends.

Please keep in mind that in our experience with the last two changes to drug quantity sentencing guidelines in 2007 and 2010, inmates who were represented by counsel were more likely to have their motions granted and were more likely to get rulings more quickly than those who filed pro se (meaning the inmate files the motion on his own behalf). The Van Cleave Law Firm is accepting new clients at this time. Motions will be prepared and filed in the order clients are retained, or on a priority basis for those whose sentences are most likely to result in a reduction to their time served.


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