Retroactive Reform

On July 18, the US Sentencing Commission voted unanimously to retroactively apply new sentencing guidelines and allow almost 50,000 federal drug-offense prisoners the possibility of shorter sentences. Dara Lind provides background, including the Obama administration’s role, or lack thereof:

The US Sentencing Commission is independent of the Obama administration. In fact, the Department of Justice originally wanted the Sentencing Commission to approve a much more limited plan — one that would only let about 20,000 prisoners apply for shorter sentences. This week, reports surfaced that Department of Justice officials had been meeting privately with the Sentencing Commission, and had softened its position a little: it now wanted something that would affect about 40,000 prisoners. It’s not clear if the plan the Sentencing Commission approved today is the one the DoJ was lobbying for in private, or a different one.

Chris Geidner passes along Holder’s response to the new development:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department’s support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system.”

Douglas Berman asks how many of the eligible prisoners will be able to get a lawyer:

As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines. Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences. But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines. I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

Jim Newell focuses on the muted response to from the right:

Had the Sentencing Commission and Holder made such moves even just a decade ago, there’s no question they would have been lambasted by Republicans — The Obama administration is setting dangerous drug addicts into the streets to eat your babies, et cetera. And yet, after the announcement Friday, there was relatively silence from the party, even though we’re just ahead of midterm elections.