Dear FAMMily,
The federal Sentencing Guidelines use drug quantity to set the base offense level (starting point) for drug guideline sentences. FAMM has always argued that drug quantity is not a good way to determine punishment. Not everyone held responsible for a large quantity of drugs is culpable in the way that a “kingpin” might be. Often people with large quantities of drugs are couriers or lookouts or messengers. We recently had a chance to make that point again when we asked the U.S. Sentencing Commission to cap the base offense level for all drug defendants at Level 30.
We did not get all we asked for, but we were heard. The Commission has made changes that could significantly reduce the sentence for low-level drug defendants. In announcing new guidelines, the Commission explained, it “has received comment over the years indicating that [the drug guideline] §2D1.1 results in sentences greater than necessary for individuals performing low-level functions in drug trafficking offenses.”
Up until now, the guidelines have tried to address this problem by using the “mitigating role adjustment.” That adjustment reduces the guidelines anywhere from two to four levels for the lesser culpable drug defendants. But, the Commission explained, that adjustment “has been applied inconsistently and more sparingly than intended.”
Now, the Commission has taken steps to address the problem of excessive drug sentences through two changes. It would amend the drug guideline so that:
1. If a defendant
○ receives a mitigating role adjustment as either a “minimal” or “minor” participant, and
○ their base offense level is above 34,
then their guideline range is capped at level 32. This could result in a reduction of 47 or more months in the guideline range.
2. If a defendant
○ Is considered a “minimal” participant and receives a 4-level mitigating role adjustment, and
○ their base offense level is above 30,
then their guideline range would be capped at level 30.
The amendment describes “minor” participants as those who distribute user-quantities of drugs for little money. “Minimal” participants primarily run errands, send or receive messages or act as lookouts.
We did not get everything we wanted, but this will be a significant relief to many defendants with drug charges. And stayed tuned as it could get better.
The Commission has asked its staff to analyze the impact of making the mitigating role caps retroactive! This is the first step in deciding whether to make a change that lowers sentences retroactively so that people in prison who fit the reduction could ask for their sentence to be reduced. We will keep you posted on whether the Commission will ask for public comment on retroactivity. If it does, we will be asking you to weigh in!
In other amendment news:
The guidelines could be simpler starting in November! And, more focused on arriving at sentences that are individualized rather than numbers on a grid. The new guidelines would be structured to reflect a two-step process. In Step One, the sentencing court would first correctly calculate the applicable guideline range. In Step Two it would determine an appropriate sentence after looking into all the factors set forth by Congress in 18 U.S.C. § 3553(a). These statutory factors are designed to ensure that the court can consider the widest possible range of information possible, concerning the offense and the defendant’s life and characteristics.
The Commission also addressed supervised release by providing for individualized supervised release determinations when the court is looking at (a) whether to impose it, (b) if so, for how long, (c) with what conditions, and (d) when to terminate early. The amendment intends to focus courts on using supervision to enhance rehabilitation and public safety. Another change stresses flexibility and individualization of responses when an individual fails to comply in some manner with the terms of supervised release.
You can read all the changes here.
There is still a long way to go for these changes to be part of the official guidelines. Congress will have until October 31 to disapprove these and other guideline amendments. We will keep you posted on all developments.
P.S. Thanks to everyone who wrote to the Commission to share your views on these and other proposed amendments. Your views matter!
