“Minus Two” Made Retroactive: Thousands Stand To Benefit From Reduced Sentences

In April of this year, the United States Sentencing Commission voted unanimously to approve amendment 782 to the federal sentencing guidelines. This amendment, sometimes referred to as the “all drugs minus two” amendment, will reduce by two the offense levels assigned to the quantities of all types of controlled substances in the Guidelines Manual. This will result in lower guideline sentence ranges for most drug related crimes. However, the minimum and maximum base offense levels, which, for most drug types are 12 and 38 respectively, will not change. The amendment will also make parallel changes to the quantity tables that apply to offenses involving the chemical precursors to scheduled substances.

After passing the amendment, the Commission invited public comment on whether to make it retroactive. They received over 65,000 letters, the vast majority of which were in favor of retroactivity. Accordingly, the Commission voted unanimously on July 18 to make the amendment retroactive, with the caveat that no one will be released from prison because of the changes before November 1, 2015. The result of this is that approximately 46,000 people will be eligible to petition for reduced sentences. The average reduction in prison time will be about two years.

The Commission highlights several reasons why the “minus two” amendment is necessary, the first of which is overcrowding. The number of people incarcerated in the Federal prison system currently exceeds the capacity of the facilities by around 32%. The Commission estimates that these sentence reductions will result in a savings of 79,740 bed years over time. A bed year is the equivalent of one person occupying a bed in a prison for one year.

Also, Congress apparently meant for the high mandatory minimum sentences to apply mainly to high-ranking members of drug organizations, but in practice this has not been the case. Mandatory minimums are tied to the quantity of drugs involved in the offense, but the Commission’s research found the quantity of drugs in a person’s possession is a poor indicator of that person’s position within a criminal enterprise. As Commission Chair Patti B. Saris put it, “a courier may be carrying a large quantity of drugs, but may be a lower-level member of a drug organization.” Therefore the mandatory minimums do not serve Congress’s intended purpose of targeting “kingpins” and “major traffickers” of drugs.

The disparities in enforcement between geographical areas and between socioeconomic groups, common to all aspects of our criminal justice system, are of course present in the use of mandatory minimums as well. For example, in 2012, African-Americans constituted 26.3 percent of people convicted of a drug offense carrying a mandatory minimum penalty, but made up 35.2 percent of those still subject to the mandatory minimum at sentencing. Since mandatory minimums harm people of color disproportionately, a categorical reduction in their use will benefit people of color disproportionately as well.

All of the policy reasons for passing amendment 782 to begin with also militate in favor of making it retroactive, as does the concept of fairness, which seems to suggest that a person should not be forced to remain in prison for an extra two years just because he was sentenced for his crime before this reform came about.

Unless Congress disapproves the “minus two” amendment, it will become effective November 1, 2014. Eligible prisoners will be able to petition the courts for reduced sentences at that time. There are 277 people in Colorado who will be eligible and 238 in Wyoming.

However, per a special instruction in the amendment, no sentence reductions can take effect until November 1, 2015 or later. The one year delay is to ensure adequate review of each case and to allow the Bureau of Prisons and the Offices of Probation and Pretrial Services to prepare by increasing their capacities for transitional services and supervision.

This change in sentencing guidelines may strike an observer as a mitigation of, rather than a solution to, our prison problem. Chair Saris would agree. “The step the Commission is taking today is an important one,” she said on the eighteenth, “but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better.”

A press release from the Commission about this decision can be found here.

Here is the text of the amendment.

And here is what FAMM has to say about it.