Sentencing Reform, Slowly but Surely: Federal Drug Sentencing Meets New Amendments & Reductions

May 28, 2014

On April 10th the United States Sentencing Commission voted unanimously to amend and reduce the federal drug sentencing guidelines. The Commission estimates that approximately 70% of federal drug trafficking defendants would qualify for the change, which would result in sentences being reduced by an average of 11 months. The articulated goal of these new guidelines is to reduce the large prison population in the United States while at the same time releasing individuals who pose no safety risk to society. The amendment drew more than 20,000 letters during a public comment period, including letters from members of Congress, judges, advocacy organizations, and individuals. “This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.” The new sentencing guidelines if not blocked by Congress will go into effect on November 1, 2014.

Many have criticized the mandatory minimum sentencing guidelines as being excessive and not serving their purpose of deterrence. In 2013 Attorney General Eric Holder endorsed the sentencing commission’s decision to reduce the sentences for less serious drug offenses. He stated in March 2014 before the Sentencing Commission that “certain types of cases result in too many Americans going to prison for too long, and at times for no truly good public safety reason,” referring to non-violent drug offenses. He also pointed to the statistic that “although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.” Mr. Holder also testified that the “focused reliance on incarceration is not just financially unsustainable – it comes with human and moral costs that are impossible to calculate.” ( ).

This new development comes on the heels of the Holder Memo referenced in our October 2013 email blast, in which the Attorney General released a memo to federal prosecutors not to press judges for the most severe mandatory minimum sentences for low level drug traffickers.

In the Northern District of California, prosecutors and probation officers seem to be taking the position that the anticipated-amended guidelines apply to present cases. Accordingly, defendants being presently sentenced are being afforded the two-level reduction in the sentencing guideline table.

Clemency Project

In addition to amendments to the Sentencing Guidelines, the Obama administration has been advocating for a change in the mandatory minimum sentencing standards. One of the avenues open to the executive branch is the Clemency process: the executive branch’s right to grant forgiveness to individuals who have federal convictions. In April 2014, Deputy Attorney General James Cole announced a new set of criteria the Justice Department and the White House will use when considering clemency petitions from federal prisoner who, if sentenced today under the current sentencing laws and policies, would have likely received a substantially lower sentence. This initiative is expected to trigger tens of thousands of petitions, and the government could be processing applications for the next three years, according to lawyers and civil rights activists.

The Clemency Project 2014, which is a working group composed of Federal Defenders, the ACLU, Families Against Mandatory Minimums, the ABA, National Association of Criminal Defense Lawyers, and individual attorneys, are now assisting prisoners with clemency petitions. NACDL President Jerry Cox said, “Clemency Project 2014 marks the beginning of the end of the age of mass incarceration. We must seize this historic opportunity to start the process of remedying decades of cruel and unnecessarily harsh sentencing policies. I call upon the nation’s lawyers, especially the criminal defense bar, to rise to this challenge in an unprecedented effort to restore hope and the prospect of an early return to freedom for the countless deserving individuals who are languishing in federal custody.” To be eligible for the Clemency Project, individuals must meet the guidelines set out by the Deputy Attorney General. The individual asking for clemency must be:

1. serving a federal sentence;

2. serving a sentence that, if imposed today, would be substantially shorter; 3. have a non-violent history with no significant ties to organized crime, gangs or cartels;

4. have served at least 10 years;

5. have no significant prior convictions;

6. and have demonstrated good conduct.

A comprehensive training program for volunteers, to be conducted in June 2014, is open to those wishing to volunteer to process the petitions, free of charge. Again, thousands of requests are anticipated.

Smarter Sentencing Act of 2014

On January 30, 2014, the Smarter Sentencing Act of 2014 passed the U.S. Senate Judiciary Committee. The Act would reduce the mandatory minimum sentences for drug offenders by half; it would extend the “safety valve” to more federal drug offenders as well as make the Fair Sentencing Act of 2010 retroactive (which. reduced the disparity between the sentencing guidelines for crack and powder cocaine offenses). If made law, the Act would expand the ability of judges to use their own discretion when sentencing defendants, thus allowing further evaluations into the unique facts and circumstances of each defendant.

With respect to further progress on the bill, there is opposition by various lobbying groups, federal prosecutors, and politicians. Individuals are being urged to write to their senators and members of congress, for passage of this Act through Congress.