The Federal Sentencing Commission has recommended a change to the Sentencing Guidelines that could shorten drug sentences by an average of 11 months. This proposal is yet another indication that lawmakers and policymakers are starting to realize that federal drug penalties are way too long and need to be reigned in.
The Commission’s recommendation is not yet in effect. It still has to pass the Commission’s approval process and get the thumbs up from Congress — something that could happen this Spring. Based on the current political climate in Washington, all of this seems possible. Lawmakers on both sides of the political spectrum are increasingly concerned about the cost of running the federal prison system — which seems unsustainable under current budget restrictions. Also, more policymakers are starting to realize that long, draconian prison sentences often make no sense for drug offenders, especially ones that are non-violent.
The change would be implemented by lowering offense level scores by two points across the board in the Guidelines’ drug quantity chart. The Commission estimates that this would lower recommended Guidelines ranges by about 11 months on average. Of course, federal judges are no longer required to follow the Guidelines. But they are required to consider the Guidelines, and many judges sentence the majority of their defendants within the Guidelines range.
We still do not know whether this change, if implemented, would be retroactive. My guess is that it would not because of the administrative havoc that would cause. But morally and philosophically, it should be retroactive. There is no reason someone who was punished in the past under a flawed Guidelines regime should not benefit from an improvement to the Guidelines.
In the meantime, federal drug defendants who face sentencing need to carefully use this issue to their advantage. There are a number of strategies that can be employed to turn this into actual relief.
Please stay tuned, as we will keep you updated on this positive development!
