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This one's right up our alley, Kossacks.  We're naturals!  Our mainspring is right there in the Democratic Party Platform: "We will continue to fight inequalities in our criminal justice system."

Meteor Blades wrote about Tuesday's U.S. Sentencing Commission hearing where testimony was heard concerning the possibility of retroactive application of the new drug sentencing guidelines that go into effect on November 1st in prospective cases.  His diary was titled DOJ-backed proposal would cut drug sentences of up to 20,000 prisoners. That's another good step. Check it out, if you haven't already.  

Here's the catch, though, on retroactivity: there were opponents at that Commission hearing - vociferous ones - some of whom do not want the new guidelines to be applied at all to those already incarcerated and some of whom want certain restrictions placed on the application of retroactivity.  This proposal for equal justice, modest as it is, is not yet a done deal, People!

In July, the U.S. Sentencing Commission will make its decision - but, in the interim, the Commission is also soliciting public comments.  They want to hear your voice!  At the end of this diary is contact information for you to email the Commission your views for its consideration. Please convey your support for retroactive application of the drug sentencing guidelines without restrictions. That is the only just and equitable outcome and here's why:

First, it is important to understand that the existence of new drug sentencing guidelines is, in itself, an admission of a mistake - a rather immense one that has resulted in overly-punitive and racially-biased application of the law.

Currently, 50% of the federal prison population is comprised of drug offenders. ... The Guidelines' excessive severity has been a driving cause of a federal prison population that has grown at an astonishing rate of almost 800% since 1980, to the point where it is currently operating at 35% above capacity, and is part of a mass incarceration crisis in the United States in which we spend $80 billion dollars to incarcerate 2.3 million people.

::

The Office of Research and Data's analysis of racial impact of retroactive application of the two-level reduction indicates that over 74% of the offenders whose sentences will be reduced under the law are Black or Hispanic.

(ACLU testimony - see link below)

If a mistake can be corrected going forward, it is only equitable that it should be corrected retroactively, as well, to whatever extent possible.  There is no sound reason to unjustifiably treat those already incarcerated less fairly.  In every instance where the Commission previously amended drug guidelines to lower sentences (LSD, marijuana, and oxycodone amendments, for instance), the amendments were always applied retroactively without reservation and without difficulty.

On to the major points of opposition:

Judicial Branch

At the Commission hearing, a judicial branch officer testified that the Judicial Conference of the United States had "voted to support retroactive application of the amendment as a matter of fundamental fairness – previously sentenced defendants will be on the same footing as defendants who commit the same crimes in the future."   Unfortunately, however, the judicial branch has conditioned its support on a delay of implementation until May, 2015, so that it "may appropriate resources."

Let me just express, first, how offensive it is to hear that the courts perceive a matter of justice as an inconvenient burden, particularly since advocates testified that there is little merit to the request.  Less than 25% of those eligible for a reduction would be eligible in the first year.  There is an application process.  The cases will not hit the courts simultaneously and, as individual cases become ready for hearing, they will be spread across the U.S. judicial system.  The courts have already capably handled recent reduction actions without incident or complication.

Perhaps most significantly, the Executive branch testified that it "disagrees with the judicial branch that insufficient resources exist to process the 51,000 prisoners who would be eligible for early release."  This is a clear indication from the Executive that the courts can expect no further funding for this purpose.  Logically speaking then, the courts will be no better positioned in May, 2015, when even more inmates become eligible for consideration and are added to the caseload.  

Executive Branch

A U.S. Attorney reiterated the views of the U.S. Attorney General, expressed when he testified before the Commission in March regarding reduction in drug sentencing, that "the current level of incarceration is not just unsustainable financially, but comes with human and moral costs that are impossible to calculate.”  Nevertheless, the department supports retroactivity only for lower level, nonviolent drug offenders without significant criminal histories.

This may sound like a reasonable request - until one realizes that if the new sentencing guidelines are applied retroactively, judicious application is already "baked in."  Not all inmates will be eligible for a reduction because of the conditions of their prior sentencing.  Not all inmates who are eligible will be granted a reduction based on a variety of factors that the sentencing judge will consider, including their criminal histories.

Again, the imposition of any artificial scheme which differentiates between treatment of past and future offenders will result in a multi-tiered application of justice.  The Executive branch has no role in the decision of future cases, and the Executive should not infringe on the judgment of the courts in any way on retroactivity.  The sentencing judges are best qualified to determine which inmates should be granted a reduction from those who will be eligible to apply.  

Law Enforcement

Representatives of the National Legislative Committee of the Fraternal Order of Police and the National Narcotic Officers’ Associations’ Coalition voiced their organizations’ strident opposition to retroactivity in all instances.  Neither rep delivered testimony that was supported by fact.  Rather, the officers appear from the testimony given to perceive incarceration as the natural and inevitable result of a job well done and without relationship to the U.S. Sentencing Commission's determination that the current guidelines are excessive.  For instance, one of the representatives actually stated the members' certainty that "recidivism rates will go up," despite also citing a study on the 2007 retroactive reduction for crack cocaine that showed recidivism rates were the same between those offenders who served full sentences and those who gained an early release.

Their bosses hold a more nuanced position. A representative of the Major Cities Chiefs Association related that the police chiefs support sentencing reform “when such action serves [the] common public interest.”  To that end, the police chiefs conveyed that they support retroactivity when it is applied on an individual basis.  Effectively, then, there is no opposition from the police chiefs on that point, since the decision of whether or not to grant retroactivity will be applied in each inmate's case by the sentencing judge.

Testimony from each branch and from advocates can be found at this link

Recidivism Study of Crack Cocaine Offenders

~~~~~

Please take a moment to convey your support for retroactive application of the drug sentencing guidelines without restrictions

The Commission seeks public comment on the issue of whether to apply the amendment to the drug quantity table retroactively. The Commission will receive public comment on this issue through July 7, 2014. Public comment can be e-mailed to public_comment@ussc.gov.
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