The United States Sentencing Commission (USSC) will formally vote on whether or not to make its proposed “drugs minus two” amendment retroactive on July 18th. This decision has the potential to impact roughly 51,000 current federal prisoners who are serving sentences for a variety of drug offenses.
Earlier this year, the U.S. Sentencing Commission sent Congress eight proposed amendments to the federal sentencing guidelines. The most significant change proposed-commonly referred to as “drugs minus two”-would lower all drug offense levels assigned to the quantities that trigger mandatory minimum penalties by two levels. This means that all new federal drug sentences will be reduced by 11 months, on average. The amendments will automatically become law on November 1 unless Congress takes action to stop that from happening, which seems highly unlikely.
While the federal sentencing guidelines are only advisory for judges, they are followed in roughly 80 percent of federal cases. If the changes go into effect on November 1st, they will likely affect the sentences of roughly 70 percent of federal drug defendants. If the guidelines are made retroactive, the U.S. Sentencing Commission has estimated that roughly 51,000 current inmates could be eligible for shorter sentences. The average sentence reduction for eligible prisoners would be 23 months.
If the Commission votes in favor of retroactivity on July 18th, it wouldn’t be the first time it has done so, but it is projected to have the largest impact. Previously, the Commission has made guideline changes to federal sentences for LSD (1993), marijuana (1995), and crack cocaine (2007, 2011) offenses retroactive, and saw positive results. For example, prisoners who received retroactive crack guideline sentence reductions in 2007 went on to re-offend at no higher rate than those who did not receive such reductions.
Between April 30th and July 7th, the U.S. Sentencing Commission allowed submissions for public comment in the Federal Register on making the “drugs minus two” amendment retroactive. During that time, the Commission received approximately 65,000 letters from a wide range of individuals and groups, including a number of U.S. Senators and Representatives, the NAACP, ACLU, National Gay and Lesbian Task Force, Catholic Charities USA, and yours truly, on behalf of Reason Foundation.
A complete list of featured individuals and groups (including Reason Foundation) that submitted letters of support for “drugs minus two” retroactivity can be viewed on the USSC website here.
The letter I submitted on behalf of Reason Foundation can be viewed here.