As a federal drug trafficking defense attorney, I see the damage caused by harsh drug sentencing guidelines. Reductions in those guidelines have been approved and are set to take effect this fall. In Maine, federal courts are already using the reduced drug distribution guidelines. But will these reduced federal drug sentences be applied retroactively? The U.S. Sentencing Commission held a hearing Tuesday, June 10, 2014 to consider that very issue. At the hearing, the U.S. Department of Justice came out in support of some limited retroactivity.
DOJ supports limited retroactivity
Retroactive application of the reduced guidelines could allow those already serving time under older guidelines to apply for a sentence reduction. One option is to allow everyone serving a federal drug trafficking sentence to apply. Attorney General Eric Holder does not go quite that far. In the words of the DOJ press release:
The department is proposing that the Commission make the revised guidelines retroactive for individuals who lack significant criminal histories and whose offenses did not include aggravating factors, such as the possession of a dangerous weapon or the use of violence. This approach is consistent with the department’s overall criminal justice reform efforts, which seek to reserve the harshest penalties for the most serious criminals who pose the greatest threat to public safety.
DOJ’s proposed criteria for retroactive drug sentence reduction
The department’s proposal calls for reduced federal drug sentences for defendants with criminal history categories I and II who did not receive
- a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c);
- an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1);
- an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2);
- an enhancement for engaging in an aggravating role in the offense pursuant to §3B1.1; or
- an enhancement for obstruction or attempted obstruction of justice pursuant to §3C1.1.
- an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1);
- an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2);
- an enhancement for engaging in an aggravating role in the offense pursuant to §3B1.1; or
- an enhancement for obstruction or attempted obstruction of justice pursuant to §3C1.1.
Sally Yates, U.S. Attorney from the Northern District of Georgia, submitted written testimony to the commission supporting some retroactivity.
First and foremost among these other policy considerations is public safety. Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized.
Yates estimates that around 20,000 inmates could be eligible for reduced drug sentences under the DOJ plan. That’s significantly less than the 51,00 who might be eligible without these limits. Either way, it’s a significant number considering that the federal system only sentenced 80,000 defendants for all of last year.
If any kind of retroactivity goes through, it will be a massive project requiring a case by case review. When the crack cocaine guidelines were reduced, there was a similar resentencing effort. That took years to complete and only involved something less than 20,000 defendants.
The burden of applying for the reductions will most often fall to the defendant who is in custody and likely no longer represented by counsel. It will be a major project to reconnect defense attorneys, prosecutors, U.S. probation and federal judges with these old cases.
