Just a few months after announcing a sweeping presidential clemency program for drug offenders, the Obama administration has backed another sentencing plan that would shave off an average of two years of prison time for as many as 20,000 federal inmates.
For this program, the Justice Department, led by Eric Holder, doesn’t need the presidential pardon power or Congress. It only needs the U.S. Sentencing Commission, which controls advisory sentencing guidelines for federal judges.
Last April, the independent agency voted to dramatically reduce the amount of prison time judges are told to mete out to defendants based on the amount of drugs they had on them when they were arrested. Now, the independent agency is weighing whether to make its earlier reductions for drug crimes retroactive. If it votes to do so, inmates serving time for dealing or possessing drugs can apply through a public defender for a reduction in his or her sentence. Judges would decide whether to grant the reduction or not.
If the amendment passes, the commission estimates that as many as 50,000 inmates would qualify for an average of two years off their sentences. Within the first three years, the government would save $1.3 billion in prison costs.
It's unlikely that Congress would vote to block the plan, even though technically they could. But politicians have largely left the commission alone in the past, allowing them to reduce sentences for crack offenders in 2010 and again in 2013 without interfering.
To the dismay of many in the prison rights advocacy community, Holder endorsed a more limited retroactivity plan, urging the commission Tuesday to exclude drug offenders who were also charged with possessing or using a weapon from being eligible for reduced jail time. Under the Justice Department’s plan, only about 20,000 federal inmates would be eligible for the break instead of 50,000.
“Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories,” US Attorney Sally Yates, who was representing the Justice Department, told the commission Tuesday.
Public defenders and prisoner advocates say they’re disappointed that the Obama administration is not fully backing the plan. Holder has been considered a hero to many in the prison reform movement for pushing to reverse some old, “tough on crime” drug laws that put people away for decades for non violent crimes, at the cost of billions of dollars.
"Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," Holder told the American Bar Association last year, when announcing that he was directing federal prosecutors not to seek mandatory minimum sentences for non-violent drug crimes.
When Holder announced in April that the department would be actively scouring federal prisons for drug offenders eligible for presidential clemency, he further solidified advocates’ support. In fact, advocacy groups that represent prisoners’ rights are helping the Justice Department screen the first 18,000 clemency applications that came in, picking the best ones to send to the president’s desk.
The clemency program is directed at inmates who have served at least 10 years in prison on a non-violent drug charge, and who would have been given less time for their crime if they were prosecuted under today’s laws and policies. More than 20,000 prisoners could potentially meet the clemency criteria, according to an internal Justice Department estimate, a stunning number that the president is almost certainly not going to grant. Such a large clemency grant would spark accusations of overreach. Republicans have already registered their disapproval with the clemency program, voting last month to block funds the pardon attorney’s office needs to sift through the flood of new applications.
The U.S. Sentencing Commission’s retroactivity plan provides relief for non-violent drug offenders sentenced under out of date laws, but also insulates the White House from political blowback.
“Commutation is an extraordinary act and a very considered judgment,” said Mary Price, general counsel of Families against Mandatory Minimums, which is involved in helping screen the clemency applications. “Retroactivity is about making things right for the people who get left behind after everybody has decided that a sentence should be lower than it is today.”
The Commission is set to vote on the amendment on July 18.