We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924©; (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

There is no good reason to limit the retroactivity to those in Criminal History Categories I and II. It is also inconsistent with the language of the reduction, which contains no such restriction for those being sentenced after November 1.

The enhancements for supervisory role, obstruction and possession of a weapon are often arbitrarily meted out and inconsistently applied, depending on the District, and the position of the U.S. Attorney's office in that district, which is often determined by whether or not the defendant cooperated. There are defendants who sold or supplied multi-kilo quantities of drugs who do not get supervisory enhancements and others who supplied or sold a few ounces who do. Some defendants who have a gun in the bedroom closet where drugs are found (or glove box of their vehicle when drugs are found in the car) get the gun enhancement and others don't. Some defendants who testify at trial and weren't believed by the jury get the obstruction enhancement and others don't.

The people opposing retroactivity seem to be cops and prosecutors who opposed the reduction itself. Red herrings are being raised like the burden this will impose on probation officers. This is a straight two point reduction. Everybody's offense level goes down two levels. For sentenced inmates whose overall guidelines are reduced by change (and it won't be everyone) the Judge still has the authority to reject a reduction if he or she thinks the reduction would jeopardize public safety.

Some are advocating the reduction only apply retroactively to those who received a safety-valve reduction at sentencing. That is preposterous and will eliminate 80.5% of eligible inmates. From the Federal Defender's statement, citing statistics from the Retroactivity Impact Analysis, Table 4B.)

A safety valve limitation on retroactivity would have a disparate impact on Black and male defendants. As the Commission’s mandatory minimum report notes, Black and male defendants received safety valve relief less often than female defendants or those of other races. For Black defendants “[t]his difference is largely attributable to the criminal history” scores. “Three-quarters (75.6%) of Black drug offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010 were excluded from safety valve eligibility due to criminal history scores of more than one point.” For the same reasons that retroactive application of the amendment is necessary to ameliorate racial and ethnic disparity, the Commission should reject any exception that perpetuates disparity.

Similarly, applying it only to those who were sentenced before 2005 when the guidelines were no longer mandatory, would eliminate 93 percent of the otherwise eligible population, according to the Commission's statistics.

The Federal Defender argues convincingly against placing limits on the circumstances under which already sentenced defendants would receive the benefit of the new guideline reduction.

This is unnecessary since §1B1.10, which was just amended this year, provides ample guidance to courts in considering the circumstances under which a sentence reduction is appropriate, and the extent of any such reduction. For example, the guidelines make clear that a court shall consider public safety issues when ruling on a motion to reduce sentence. USSG §1B1.10, comment. (n.1(B)(ii)).

The guideline also puts substantial limitations on the degree of the reduction, confining it to a term no less than the minimum of the amendment guideline range unless the defendant has previously received a departure for substantial assistance. We see no rationale for imposing additional limitations, especially since the Commission made no exceptions to the reduction for defendants who will be sentenced after November 1, 2014. In particular, we think it would be a mistake for the Commission to limit retroactivity to arbitrary categories of defendants, such as those who received a “safety valve” adjustment or those sentenced before United States v. Booker, 543 U.S. 220 (2005). (my emphasis).

The Commission has never before excluded categories of defendants from the retroactive application of lower guideline ranges. It should not do so now. “Section 3582©(2) empowers district judges to correct sentences that depend on frameworks that later prove unjustified. There is no reason to deny § 3582©(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.”

The Commission determined that the drug quantity table was flawed. That drug quantity table is a critical component to the guideline calculation for every single defendant sentenced under the drug guidelines, not just those who received a safety valve adjustment or those sentenced pre-Booker. If the Commission also determines, as it should, that sentences that relied on that table ought to be reexamined, then no good reason exists to “extend the benefit of the Commission’s judgment only to an arbitrary subset of defendants” and deprive similarly situated defendants the same benefit.

The two point reduction is a step in the right direction. It must be applied retroactively to all, especially since judges will still have the discretion to reject reductions for public safety reasons.

The reduction also won't help those who were sentenced to mandatory minimum ten and twenty year terms, even if their guidelines fall below the mandatory term once the reduction is applied. Mandatory minimum sentences trump the guidelines because they are laws enacted by Congress. Only Congress can change them.

So a defendant sentenced years ago to 15 years for crack cocaine, who was subject to the 10 year mandatory minimum, and as a result of the retroactive reduction in crack guidelines in 2011, is now at 10 years, can't go any lower because of the new guideline change. The 10 year mandatory minimum will still apply.

Mandatory minimums need to be repealed entirely to correct the injustice. Congress also needs to increase eligibility for the statutory safety valve by eliminating the requirement that the offender be in Category I and not have a supervisory role and confess all they did to the government. Many won't talk due to safety fears for their families. They shouldn't be penalized for that.

If more probation officers are needed to implement reductions retroactively, Congress can make a supplementary budget grant. The amount of money saved by the Bureau of Prisons over the next few years by adhering to the statutory factor that people should not be sentenced to imprisonment for terms longer than necessary to achieve the purposes of sentencing will more than make up for it. It's also the right thing to do. Equal justice and fairness in sentencing should not be denied to anyone due to budget considerations.

I think the Sentencing Commission will make the reductions retroactive and reject limiting it to Post-Booker cases, those who qualify for the current safety valve and don't have various enhancements. I won't be surprised, however, if it adopts the Justice Department's proposed restriction limiting it to those in criminal history Category I or II, but it will be a big mistake to do so. The rules for those sentenced after November 1 and those already sentenced should be the same, especially since judges already have the authority to put the brakes on retroactive requests for reasons of public safety.

Here are the Sentencing Commission's most recent (April and May, 2014) drug trafficking sentencing statistics. Powder cocaine statistics are here and crack cocaine statistics are here. Marijuana statistics are here.