Federal sentences for people caught up in drug crimes are nothing less than soul-sucking. They are guided, at least in the first instance, by the United States Sentencing Guidelines, which have often been criticized as being too high and too much driven by drug quantity rather than other factors, such as the person’s individual circumstances that led him or her to get involved in drug distribution in the first place. So a low-level addict selling over time to support her addiction and feed her children can face the same kind of sentences as a kingpin making millions from importing huge quantities of deadly drugs into the United States.
Little by little, the newly-reconstituted U.S. Sentencing Commission (the body that promulgates the Guidelines) has chipped away at these injustices. This year, there is a proposal that is likely to pass (unless the Republican-controlled congress overrides it) to reduce sentences for low-level participants in drug conspiracies. It’s a good start and a fair-minded reform that will help the Guidelines more accurately reflect a person’s actual criminal culpability, not to mention bring the Guidelines in line with how most reasonable judges sentence people anyway. The question for our purposes is this: should the new rule apply to people who have already been sentenced? Or in lawyerly parlance, should the new rules apply retroactively.
As the National Association of Criminal Defense Lawyers wrote in a letter to the Sentencing Commission co-authored by ZMO Law Principal Attorney Zach Margulis-Ohnuma, the answer is a resounding “yes.” As NACDL wrote, the point of the amendments is to reduce the number of people pointlessly in prison and stop over-punishment of people convicted of low-level drug crimes. According to the Sentencing Commission, there are about 50,000 people in federal prison who did not receive a reduction in their Guidelines due to their role in the offense. These cases would have to be re-reviewed if the amendment is made retroactive and if the person’s role was small, a judge would have discretion to re-sentence them.
That’s fair – the old rule they were sentenced under was too harsh. But there is another benefit to retroactive application. It creates hope. If people know a judge is going to take another look at their case and their sentence may be reduced, they tend to be more hopeful, less stressed out, and more prone to succeed during their incarceration. Retroactive application may be cumbersome but its benefits far outweigh its costs. The NACDL got it right and we can only hope the Sentencing Commission will listen, thereby providing hope to thousands of people pointlessly caught up in the drug wars.
Photo by RDNE Stock project