Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough? By Sarah Alexander

Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough?

Sarah Alexander

Introduction

On July 18, 2014, the United States Sentencing Commission (Sentencing Commission) voted to retroactively apply a change in the United States Sentencing Guidelines (USSG) for nonviolent drug offenders.[1] Ultimately, the Department of Justice and the Judicial Conference, as well as many other groups, supported the amendment, which was proposed in April of this year.[2] If Congress does not intervene before November 1st of this year, the retroactive amendment will take effect.[3] I believe this retroactive amendment to the USSG is well-intentioned, but ultimately falls short of the reform needed to bring equality to the justice system. The amendment provides no alternative to prison for non-violent drug offenders. Rather, the amendment reinforces the idea that prison is the only option for drug offenders.

The Amendment

The amendment will make nearly half of all prisoners incarcerated for drug crimes eligible for a sentence reduction.[4] Eligible prisoners may receive a sentence reduction averaging approximately two years, which would result in a sentence reduction of 18.8%.[5]

The Justice Department, at first, pushed back against the proposed amendment, but eventually negotiated the amendment’s postponed effective date of November 1, 2015.[6] Therefore, while the amendments will reduce prison sentences for nearly one-half of nonviolent drug offenders, no prisoner will be released from prison until after November 1, 2015. It is estimated that 46,290 nonviolent drug offenders will be affected by the retroactive sentencing amendment.[7]  However, that number will likely be reduced because the one-year delay will allow approximately 500 prisoners nationwide to finish their current sentences.[8] According to Judge Patti B. Saris, chair of the Sentencing Commission, “[t]he delay will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allowing for effective reentry plans.”[9]

The Amendment’s Effects

The effect of the new sentencing amendments on the federal prison system will have both short and long term effects. The new average drug sentence for nonviolent offenders will be 9 years.[10] This reduction will save up to 79,740 bed years.[11] A bed year is “the equivalent of one federal prisoner occupying a bed for a year.”[12] The number of bed years saved could drastically reduce prison overcrowding. Presently, federal prisons are approximately 32% over capacity.[13] The estimated average cost of one bed year in 2014 is $11,000 per inmate.[14] Therefore, the amendment could possibly save the Bureau of Prisons more than $877,140,000. In Alabama alone, 905 inmates are facing the possibility of a reduced sentence.[15]

Inmates will not automatically be eligible for a reduced sentence.[16] In order to receive a sentence reduction, an inmate must first ask a judge to review the case.[17] The judge will then determine whether the inmate and a reduced sentence would create a risk of public harm.[18] Then the judge will either deny or grant the inmate’s request for a reduced sentence.[19]

Reactions to the Amendment

The amendment received unanimous support from the U.S. Sentencing Commission.[20] The proponents of the amendment rely on the amendment’s reduction of prison costs and the amendment’s protection of the public safety.[21] The Commission conducted a study of offenders released after a similar 2007 amendment reduced the sentences for crack offenders. The Commission found “that those offenders were no more likely to reoffend than offenders who had served their original sentence.” [22] Jesselyn McCurdy, the senior legislative counsel for the American Civil Liberties Union said, “As we continue the march toward fairness in our country’s failed racially biased sentencing policies, we can’t leave behind those who had the bad luck to receive their sentences before the policies were changed…Making these new guidelines retroactive will offer relief to thousands of people who received overly harsh sentences under the old sentencing guidelines.”[23] However, not all involved in the sentencing process are supportive of the amendment. [24]According to an anonymous Justice Department official, some federal prosecutors strongly oppose reductions in sentences for the cases that they have overseen.[25]

While the retroactive amendments are a step towards equality before the law, more action is needed. Sentencing Commission Chairwoman Saris emphasized that “[t]he step the Commission is taking today is an important one, but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better.”[26]

Conclusion

The retroactive amendment is viewed as a starting point to prison reform. However, I view the amendment as an attempt to curb the discussion of necessary, wider justice system reform. Rather than address the underlying systemic issue of sentencing nonviolent drug offenders to prison for a physical and mental disease, the amendment distracts the public from the issue with smoke and mirrors. The amendment allows people to feel as though the justice system is fair and equal, when, in reality, the justice system is still disproportionately sentencing minorities to prison for drug offenses.[27] The amendment pushes the ignorant idea that prison will reform these nonviolent drug offenders while offering no other possible disposition. Therefore, while I commend the Sentencing Commission’s unanimous support of the retroactive agreement, I fear that this will be the end of an essential debate in the area of civil liberties and civil rights.

[1] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, News Release (U.S. Sentencing Comm’n, Washington, D.C.), July 18, 2014, at 1.

[2] Id.

[3] Id.

[4] Timothy M. Phelps, Federal Gov’t Moves to Reduce Sentences of 46,000 Drug Offenders, Los Angeles Times (July 18, 2014, 9:10 PM), http://www.latimes.com/nation/nationnow/la-na-drug-sentences-reduced-20140718-story.html.

[5] Brendan Kirby, Thousands of Federal Drug Offenders Could Get Early Release Under Sentencing Comm’n Vote, Al.com (July 18, 2014, 4:11 PM), http://www.al.com/news/index.ssf/2014/07/thousands_of_federal_drug_offe.html.

[6] Timothy M. Phelps, supra note 4.

[7] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[8] Brendan Kirby, supra note 5.

[9] Id.

[10] Id.

[11] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[12] Id.

[13]  Id. at 1.

[14] U.S. Gov’t Accountability Office, Bureau of Prisons Info. on Efforts and Potential Options to Save Costs (2014).

[15] Brendan Kirby, supra note 5.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[21] Brendan Kirby, supra note 5.

[22] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[23] Brendan Kirby, supra note 5.

[24] Timothy M. Phelps, supra note 4.

[25] Id.

[26] Brendan Kirby, supra note 5.

[27] See E. Ann Carson and William J. Sabol, Dep’t of Justice Office of Justice Programs, Prisoners in 2011 28 (2012).

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