Yesterday the U.S. Sentencing Commission
unanimously
approved a “modest amendment” that would reduce prison
terms for thousands of drug offenders by an average of nearly a
year. The amendment, which will take effect on November 1 unless
Congress votes to override it, reduces by two the “base offense
levels,” tied to drug weight, that judges use to calculate
sentences. The commission says “approximately 70 percent of federal
drug trafficking defendants would qualify for the change, with
their sentences decreasing an average of 11 months, or 17 percent,
from 62 to 51 months on average.” The shorter sentences would
“reduce the federal prison population by more than 6,500 over five
years, with a significantly greater long-term impact.” The
commission has not decided yet whether the amendment will apply
retroactively, which would allow thousands of current prisoners to
be released earlier than expected.
Families Against Mandatory Minimums (FAMM) gives
an example of the amendment’s impact:
Under the current guidelines, a first-time drug offense
involving at least 10 grams of methamphetamine, but not more than
20 grams, is a level 18 offense, which means the recommended
sentence range for the first-time offense is 27-33 months. Under
the new guidelines adopted today by the Sentencing Commission, the
same quantity of methamphetamine will be a level 16 offense, which
means the recommended sentence range for a first-time offense will
be 21-27 months.
“We commend the Sentencing Commission for taking this important
step toward reforming federal drug sentences,” says FAMM President
Julie Stewart. “This change will save taxpayers money, help to rein
in federal prison spending, and bolster the spirits of tens of
thousands of federal defendants who are facing impractical and
disproportionately long sentences.”
The amendment
will not affect mandatory minimum sentences prescribed by statute,
but it will move the recommended penalty ranges down so that they
include the mandatory minimums. Currently the ranges for drug
quantities that trigger five- or 10-year sentences are higher than
the mandatory minimums so defendants can obtain shorter prison
terms by agreeing to plead guilty and cooperate. But as the
commission’s chairwoman, U.S. District Court Judge Patti B. Saris,
explained yesterday, “it is no longer necessary to
set the guidelines above mandatory minimum penalties to encourage
low-level offenders to cooperate,” because “Congress added the
‘safety valve,’ which provides for sentences below mandatory
minimum levels for low-level offenders and gives those
offenders substantial incentive to cooperate.”
Saris defended the amendment on grounds of efficiency:
Reducing the federal prison population has become urgent, with
that population almost three times where it was in 1991. Federal
prisons are 32% over capacity, and federal prison spending exceeds
$6 billion a year, making up more than a quarter of the budget of
the entire Department of Justice and reducing the resources
available for federal prosecutors and law enforcement, aid to state
and local law enforcement, crime victim services, and crime
prevention programs—all of which promote public safety.
Saris did not say anything about justice, perhaps because it is
hard to make the case that there is such a thing as a fair prison
term for consensual transactions among adults, let alone that 11
months is the difference between just and unjust for a given
quantity of an arbitrarily proscribed chemical. By contrast,
Attorney General Eric Holder, who
supported this amendment, does
criticize “draconian” and “unfairly long” drug sentences in
terms of justice. Yet Holder’s main initiative in this area, which
involves urging federal prosecutors not to mention drug weight when
charging certain low-level offenders,
might help 500 people a year, compared to 1,300 a year affected
by the amendment. Then again, Holder’s policy could result in
substantially bigger sentence reductions in some cases.
In terms of impact, the
Smarter Sentencing Act, which the Senate Judiciary Committee
approved by a vote of 13 to 5 in January, would blow both of these
changes out of the water. That bill, which is supported by the
Obama administration and has bipartisan backing in the House as
well as the Senate,
would shorten the sentences of something like 8,800 people
currently serving time for crack offenses by making changes enacted
in 2010 retroactive. It also would cut the mandatory minimums for
various other drug offenses in half and loosen the criteria for the
safety valve.
Several Republicans have taken leading
roles in sentencing reform, including Sen. Mike Lee
(R-Utah), who co-sponsored the Smarter Sentencing Act with Sen.
Dick Durbin (D-Ill.); Sen. Rand Paul (R-Ky.), who together with
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)
introduced the even more ambitious Justice
Safety Valve Act last year; and Rep. Raul Labrador
(R-Idaho), the chief sponsor of the Smarter Sentencing Act in the
House. But so far only one Republican on the House Judiciary
Committee, Rep. Spencer Bachus (Ala.), is co-sponsoring the Smarter
Sentencing Act. The committee’s Republicans
complain (inaccurately, in my view) that Holder’s policy
regarding charges against low-level drug offenders is an abuse of
executive power. They say addressing draconian prison sentences is
Congress’s job. Here is their chance to do it.
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