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Sentencing / Post-Conviction

US Sentencing Commission votes to make drug sentencing change retroactive

The U.S. Sentencing Commission voted Friday to make a sweeping change to drug sentences retroactive. According to a press release (PDF) from the U.S. Sentencing Commission, this opens the possibility for an estimated 46,290 offenders to leave prison sooner.

The vote adds retroactivity to a change made in April to the U.S. Sentencing Guidelines. At that time, the commission voted to lower by two levels the base offense levels for all drug types in the Drug Quantity Table, which federal judges use to determine sentences for nonviolent drug crimes. That adjusted sentencing guidelines downward for all federal drug offenses, which means the guidelines will no longer call for higher minimum sentences than mandatory minimum laws. Mandatory minimum laws still apply.

The commission says the change means existing prisoners could serve an average of 25 fewer months in prison. In order to take advantage of it, however, prisoners must still petition federal courts for sentence reductions. The earliest possible release date, set by the commission, is Nov. 1, 2015. This gives the justice system a chance to handle an expected flood of petitions and probation needs.

Families Against Mandatory Minimums and other sentencing reform activists campaigned to make the change retroactive, spurring letters of support from ordinary people, activists, judges and members of Congress. FAMM communications director Mike Riggs told the ABA Journal that no member of Congress submitted letters arguing against retroactivity, though Sen. Chuck Grassley (R-Iowa) and Rep. Bob Goodlatte (R-Virginia) submitted letters arguing against the non-retroactive April decision.

Congress does not have to approve the commission’s decision. Until October, Riggs said, legislators have the power to pass a law overturning the decision, but this is not considered likely.

“Congress can’t strike just retroactivity,” he says. “If it wants to strike today’s vote, both houses have to write legislation and pass it, and the president has to sign it.”

The decision comes in a time of increasing bipartisan interest in sentencing reform. Congress is considering the Smarter Sentencing Act, which would halve mandatory minimums for certain nonviolent drug crimes and open an opportunity for crack cocaine offenders to seek shorter sentences like those created by the Fair Sentencing Act. And the Obama administration in January started seeking for possible clemency for low-level offenders sentenced under tough drug laws during the crack cocaine epidemic.