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August 14, 2014 Articles

A Look at Retroactive Reduction of Drug-Trafficking Sentences

The amendments to the Federal Sentencing Guidelines were approved to be retroactive and will create challenges for the system when the approximately 60,000 expected sentence-reduction motions are made.

By Dillon Malar

Editor’s Note: We are pleased to present two excellent articles below regarding the recent amendments to the Federal Sentencing Guidelines by the U.S. Sentencing Commission. Our first article, by Vadim A. Glozman, discusses how the amendments are consistent with Department of Justice policy under Attorney General Eric Holder, and examines the potential impact on the sentencing courts. Dillon Malar’s article focuses on the consequences of the guidelines being applied retroactively, and touches on the logistics of how this will be accomplished. We hope you enjoy both of these excellent articles on this important subject.

In April 2014, the U.S. Sentencing Commission made perhaps the most significant amendment to the Federal Sentencing Guidelines since they went into effect in 1987. The USSC voted unanimously to reduce the base offense levels associated with drug quantity for all drug types by two levels. According to the commission, the changes will affect nearly 70 percent of federal drug-trafficking defendants, who account for nearly half of all federal criminal prosecutions. The changes will reduce the average sentence by 17.7 percent, from 62 months to 55 months. Unless Congress takes the unlikely step of blocking the amendment, the reduction will go into effect on November 1, 2014. In practice, the guidelines are already in effect as the Department of Justice has instructed its attorneys not to oppose application of the new guidelines.

On July 18, 2014, the USSC went a step further when it voted unanimously to apply the amended guidelines retroactively. This is likely to be an even more consequential step from the perspective of all those involved in the business of federal sentencings, including defense attorneys, courts, the Office of Probation and Pretrial Services, and the Bureau of Prisons. While prospective application entails little more than a subtle change in a formula, retroactive application to offenders currently incarcerated will create an enormous amount of work that would never have existed without retroactivity. The USSC estimates that 46,290 offenders will be eligible to have their cases reviewed by a judge to determine whether their sentences should be reduced. Eligible prisoners will spend a collective 79,740 fewer years in prison, and their average sentence will be reduced from 125 months to 102 months, thereby saving taxpayers billions of dollars. While the long-term savings from the reductions will be enormous, processing the reductions is going to put further strain on an already seriously overburdened federal criminal-justice system.

What Exactly Did the USSC Decide?
The USSC voted that courts can begin entertaining motions in November 2014 but that no prisoners benefiting from reductions will be released until November 2015. According to the USSC chair, Judge Patti B. Saris, the year-long delay “will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allowing for effective reentry plans.” This limitation is responsive to concerns voiced by the federal judiciary, the Office of Probation and Pretrial Services, and the Bureau of Prisons that November 1, 2014, was much too soon to implement adequate measures for dealing with the flood of reduction motions that would result.

The USSC did not heed the Department of Justice’s request that retroactivity be limited to offenders who had little or no criminal history and whose sentences did not include enhancements for things such as use of a weapon, violence, or obstruction of justice. Instead, the USSC prioritized its duty to minimize overcrowding in the federal prison system over concerns for public safety voiced by the Department of Justice and law-enforcement groups, pointing to studies that showed that offenders released early under previous retroactive reductions posed no greater risk than those who served out their full sentence. Ultimately, the USSC decided to implement the fullest retroactivity possible with only minor modifications to deal with the practical issues that will inevitably arise from having to process the reductions.

How Will the Reductions Be Conducted?
The need for the creation of an efficient system to deal with 60,000 sentence-reduction motions that the Department of Justice estimates will be made becomes clear when one considers the entire federal court system handled about 80,000 sentencings during the whole of the 2013 fiscal year. While the number of prisoners eligible for reductions is unprecedented, amendments to the guidelines have been applied retroactively in the past.

The application of retroactive reductions for crack-cocaine offenses, approved in 2007, is instructive of how the new amendments will work in practice. First, despite what many media outlets have reported, the 2014 guidelines amendment will likely not necessitate full resentencing hearings requiring the presence of the offender. In Dillon v. United States, 560 U.S. 817, 828 (2010), the U.S. Supreme Court held that neither Federal Rule of Criminal Procedure 43 nor 18 U.S.C. § 3582(c) required the offender’s presence at a reduction hearing. This means that the vast majority of reduction motions will be handled by judges on the papers with the aid of a report authored by the Office of Probation. Second, the Supreme Court ruled in Dillon that offenders could not re-raise previously litigated issues and could not seek further reductions on other grounds. This meant that offenders sentenced before United States v. Booker, 543 U.S. 220 (2005), could not argue for a below-guideline range that they were ineligible for when they were sentenced.

Aside from these rules, the USSC will likely grant district courts wide latitude to decide how they want to carry out the reductions, as was done with the 2007 crack-cocaine reductions. Districts with thousands of eligible offenders, such as those along the border with Mexico, will likely need different procedures to handle the reduction motions than districts with fewer than a hundred, such as Vermont and Delaware. In districts such as Western and Southern Texas, it is likely that the courts and the Office of Probation and Pretrial Services may need to assign staff full-time to deal with the reductions that will put further strain on an already overburdened system. It seems unlikely that Congress will approve any additional expenditure to process the reductions in the near term even if retroactivity will ultimately save billions in the long term.

Where Does the USSC Go Next?
Now that it has approved two major reductions in the Federal Sentencing Guidelines since 2007, the question becomes what will the USSC do next? The USSC seems increasingly concerned with the 32 percent over-capacity of the federal prison system. This focus is consistent with the growing consensus that current levels of incarceration are both economically and morally unsupportable. While the 2014 amendments are a step in the right direction, the USSC lacks the power to undertake the systemic reforms necessary to really confront over-incarceration, which only Congress can undertake. Until then, it seems likely that the USSC will continue to incrementally relax the Federal Sentencing Guidelines and slowly chip away at the problem.

Keywords: criminal litigation, United States Sentencing Commission, Federal Sentencing Guidelines, drug penalties, retroactive, sentence reductions

Dillon Malar is an associate with Baldassare & Mara LLC in Newark, New Jersey.

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