Would New Sentencing Guidelines Free Violent Felons?

The chairmen of the House and Senate Judiciary committees have warned Attorney General Loretta Lynch a fast-approaching retroactive reduction in sentencing guidelines for drug distribution and trafficking convictions will bring the release of thousands of federal inmates in a few months, potentially including those with extensive criminal records involving violent offenses including firearms violations, assault and even murder.

In a July 21 joint letter to the Attorney General, the panel chairs – Rep. Bob Goodlatte (R-VA) and Sen. Chuck Grassley (R-IA) – called on the Attorney General to provide detailed information on the identity, aliases, nationality, criminal history and planned release date for thousands of federal inmates the sentencing guideline change will free if it takes effect on November 1.

The chairmen noted they had unsuccessfully sought that information from the U.S. Sentencing Commission, which authored the change. At that time, they told the Sentencing Commission that, although the sentencing guideline revision was apparently intended to address only convicts with lower-level, non-violent involvement in drug crimes, it would in practice have a broader “profoundly irresponsible” effect.

By reducing the base formula for all drug offenses used when calculating if minimum mandatory sentences apply, the panel chairmen told the Sentencing Commission last year, the effect would be to reward drug violators who “possessed a firearm, committed a crime of violence, or had prior convictions.”

Part of the judicial branch, the Sentencing Commission was created by the Sentencing Reform Act of 1984, with the mission of making sentencing for federal crimes more uniform nationwide. Comprised of seven presidential appointees (at least three of whom must be sitting federal judges), it analyzes sentencing data and makes annual recommendations for changes to advisory federal sentencing guidelines.

Last year, the Sentencing Commission issued Amendment 782 to the federal sentencing guidelines, revising the formula — retroactively lowering it by two levels — for determining how severely any drug distribution or trafficking offense should be counted in deciding whether minimum sentencing provisions apply. At the time, the Commission estimated the change could cut sentences for an estimated 46,000 inmates, bringing an average 18% reduction. Because of this large impact, the Commission delayed its retroactive effect until November 1 this year.

But, the two chairmen’s letter maintains, the change could mean that on that date, nearly 8,000 federal inmates would qualify for immediate release from federal prison, including those with histories of violent crimes, including assault, firearms violations or murder. At least in part spurred by a Department of Justice program to identify low-level, non-violent offenders serving long prison terms for relatively minor offenses who might qualify for sentence reductions, tens of thousands of federal inmates have already petitioned the Bureau of Prisons for release or shorter sentences.

The chairmen’s letter also asked the Attorney General whether the Bureau of Prisons has already notified Immigration and Customs Enforcement, or plans to do so, about plans to release from its custody criminal aliens unlawfully in this country.

The issue of whether or how to revise sentencing guidelines for drug offenses is very likely to be part of any debate Congress has this year on proposals for criminal justice reform. The Obama administration is working on a package of legislative proposals, and members of both parties have also been working to devise their own bills in the area.

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