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June 01, 2014

ABA supports retroactive application of drug sentencing guidelines

James E. Felman, the ABA’s liaison to the U.S. Sentencing Commission and chair-elect of the ABA Criminal Justice Section, testified at a June 10 commission hearing that the 2014 amendments to the drug sentencing guidelines should be applied retroactively.

Calling retroactivity a “moral imperative,” Felman told commission members that this is their opportunity to do what they can for those already imprisoned whose sentences are now widely understood to be potentially excessive. 

The 2014 amendments to the drug guidelines, which were passed unanimously by the commission, reduce the disproportionate role that the single factor of the drug quantity has played in sentences tied to mandatory minimums for drug offenses.

 “We strongly support the new two-level reduction across the drug quantity table will have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with the current statutory minimum penalties,” Felman said.  “It would still provide for significant punishment for drug offenses while more appropriately taking account individual culpability, deterrence and the overall seriousness of the offense,” he explained.

Felman pointed out that the commission estimates that the average extent of reduction in sentence for those eligible for retroactive application would be 18.4 percent, which would provide “tremendous relief” to an already overburdened federal prison system. “It is unfair for thousands of prisoners to continue serving unduly severe sentences that would be nearly 1/5 lower if imposed today,” he said. In addition, recidivism rates of those released early under retroactive application of the 2014 drug guidelines amendments are expected to be low based on earlier experience with retroactive application.

Others testifying at the hearing also supported retroactivity, including representatives of the Department of Justice, federal public Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, and the Judicial Conference Criminal Law Committee. Representatives of law enforcement organizations expressed opposition or concerns about making the amendment retroactive.

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