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Federal Drug Sentencing Shakeup Coming? Courts, DOJ Back Plan

By William Peacock, Esq. on June 12, 2014 | Last updated on March 21, 2019

We've been aware for some time that Attorney General Eric Holder was eyeballing drug sentences as a target for reform -- he said so at last year's American Bar Association annual meeting. But, one burning question in sentencing law has been whether these drug reforms are or will be retroactive? With the Fair Sentencing Act (crack sentencing reform), the issue sprung up repeatedly, clogging the dockets of appeals courts.

Earlier this week, Holder again spoke up about sentencing reform, this time announcing that the U.S. Sentencing Commission was considering a proposal to allow current inmates, serving time for nonviolent drug offenses, to be eligible for reduced sentences.

Holder, DOJ Back Commission's Plan

Back in April, the Commission dropped the base offense level for an assortment of drug quantities by two levels, reducing the average guideline sentence by 23 months. What was left undecided, however, was whether the change would be retroactive.

According to Department of Justice press release, the Commission will vote on retroactivity next month, and the DOJ has come out in favor of it -- with caveats.

"Under the department's proposal, if your offense was nonviolent, did not involve a weapon, and you do not have a significant criminal history, then you would be eligible to apply for a reduced sentence in accordance with the new rules approved by the Commission in April," Holder said.

"Not everyone in prison for a drug-related offense would be eligible. Nor would everyone who is eligible be guaranteed a reduced sentence. But this proposal strikes the best balance between protecting public safety and addressing the overcrowding of our prison system that has been exacerbated by unnecessarily long sentences."

The specifics of the department's proposal, including which enhancements would make an offender ineligible for a retroactive reduction, are in the press release.

Federal Courts Also in Favor

Also on Tuesday, the Administrative Office of the U.S. Courts came out in favor of a retroactive reduction, with their own caveats:

  1. The Courts are authorized to begin accepting and granting petitions on November 1, 2014;
  2. Any inmate who is granted a sentence reduction will not be eligible for release until May 1, 2015; and
  3. The Sentencing Commission helps coordinate a national training program that facilitates the development of procedures that conserve scarce resources and promote public safety.

In other words, the already strained courts are worried about clogging the dockets with an immediate influx of petitions and more importantly, a massive surge in demand for post-release resources.

"The release of thousands of additional offenders to supervision when the system is already dealing with diminished resources and an increasingly risky offender population raises several public safety concerns," Judge Irene Keely said in testimony to the Commission.

"We believe that the delay in the effective date that we have recommended will help the courts and probation offices manage the surge in workload while we try to secure additional resources."

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