Last year, the U.S. Sentencing Commission made major decisions in felony drug sentencing. In April 2014, the Commission lowered many sentences for non-violent drug crimes. Months later, it made the decision retroactive, affecting some convicted felons already in prison. At the beginning of November 2015, the first group of 6,000 inmates was released from custody based on this new policy. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016.
How Does the New Sentencing Law Work?
The new sentencing policy is often referred to as “Drugs Minus Two.” The Sentencing Commission has long used a “drug quantity table” to find guideline sentences for drug possession based on weight. Often, these guideline sentences were much higher than the mandatory minimums for the same crimes. Now, the Commission will downwardly adjust all sentences by two levels on the table. The Commission estimates that the average sentence reduction will be approximately 25 months for qualifying drug crimes.
For current prisoners, release is not automatic. Prisoners must apply for relief and a judge must determine that the prisoner is eligible for resentencing. The judge must then decide on a case-by-case basis whether or not a prisoner merits a reduction.
Several types of prisoners will not qualify for resentencing. For example, those who have been found guilty of drug crimes that resulted in death or serious bodily injury cannot be resentenced. Inmates whose sentences were based on a career offender status or another higher guideline (based on aggravating factors) also do not qualify.
What Will Become of the People Getting Released?
Most of the people released will first go to halfway houses or home confinement before being reintegrated into society. This step is intended to ensure a more successful transition out of prison. However, about 1,700 of the individuals are undocumented immigrants who may face immediate deportation to their country of origin upon release.
Has the Federal Government Now Done Enough for Non-Violent Drug Offenders?
Many sentencing reform activists say that this policy, while a step in the right direction, does not go far enough to make sure that drug offenders face reasonable and humane federal sentences. There are many things that still contribute to overly punitive sentences, including the guideline sentencing grid and mandatory minimums. One former Assistant U.S. Attorney, who later became a sentencing reform advocate, calls the process overly mechanical and says that it is therefore like “stacking bodies up” regardless of the facts of the individual crime. There are still roughly 90,000 individuals serving federal time for drug crimes.
Activists point to several factors in harsh sentencing:
- The law does not distinguish between small-time dealers and couriers and major players like cartel leaders, so people are often sentenced for the quantity of drugs involved in a much larger scheme rather for the quantity they actually handled.
- The government still uses the weight of drug-containing compounds to determine sentencing. For example, for possession of Lortab, a pill containing 95% aspirin and around 5% hydrocodone, courts consider the entire weight of the pill. For LSD-laced sugar cubes, courts consider the weight of the sugar cube.
- Due to harsh potential sentences, defendants are often convinced to plea bargain rather than go to trial. Human Rights Watch says that federal drug defendants who go to trial receive sentences three times as long as those who plead and avoid time-consuming trials.
- “Three strikes” and other repeat offender laws are still in effect. For a drug addict who has not yet received proper counseling and treatment, a few drug possession felonies could lead to a sentence of multiple decades or even life in prison.
Moving Towards Rehabilitation
Our society may begin to consider less incarceration-oriented sentencing for nonviolent crimes, including drug crimes. Trying to genuinely rehabilitate rather than “warehouse” drug offenders would be both cost-effective and compassionate. In 2013, the average yearly cost of housing a single federal inmate was $29,291.25. Ironically, this would be enough money for a young adult to pay tuition at an inexpensive college. Many inmates are only in their late teens or early twenties and may never be able to show that they have given up the drug lifestyle and can be responsible, productive adults.
Further sentencing reforms should allow courts to consider background and individual facts of each case. They should also give more defendants a meaningful opportunity to have a second (or third, or fourth) chance. “Drugs minus two” may be the first step in a long road ahead.
Authored by Alexis Watts, LegalMatch Legal Writer