May 1, 2007
Crack cocaine and “compassionate release” changes sent to Capitol Hill
Today, as it does every May 1st, the United States Sentencing Commission sends to Congress a list of proposed changes to the federal sentencing guidelines. Included in the package going to Capitol Hill today are an amendment to improve crack cocaine sentences and a policy statement to give sentencing courts guidance on granting release to prisoners for extraordinary and compelling circumstances (sometimes referred to as compassionate release). These are issues of great importance to FAMM and ones we've worked on for years.
Congress has six months to study the proposed guideline amendments and can try to block them if they want. But if no action is taken by November 1, 2007 the amendments automatically become effective.
We’ll report on other guidelines changes of interest to FAMM members in the summer issue of the FAMMGram.
Crack changes long overdue
The crack cocaine amendment has been a long time coming. In 1995 the U.S. Sentencing Commission released a report on crack cocaine that concluded that crack sentences were unjustifiably harsher than those for powder cocaine. Shortly thereafter they approved an amendment that would sentence crack defendants the same as powder cocaine defendants. When the amendment was sent to Capitol Hill, Congress erupted with opposition. The amendment was blocked and the Commission was allowed to dwindle to one member as punishment for sending the crack amendment forward. The Commission was chastened but continued to do research on crack cocaine, releasing another crack report in 2002, and twice suggested to Congress ways to address harsh crack penalties. But they did not send forward a new guideline amendment until today, 12 years later.
How the reform works
Please note that the changes to crack cocaine sentences will not take effect until November 1 and will only affect people who are sentenced after they take effect, These changes are not retroactive.
The amendment reduces crack cocaine sentences by modifying the guideline drug quantity thresholds by two levels to provide sentencing ranges that place the mandatory minimum penalties at the top end of the guideline range instead of the bottom. For instance, currently five grams of crack cocaine triggers a Guideline Level 26 with a range of 63-78 months in prison. The amendment will change that to Level 24 with a range of 51-63 months, effectively reducing the defendant’s sentence by 12 months if he is sentenced at the bottom of the guideline range. All of the Guideline Levels for crack quantities are reduced by two, so a Level 32 becomes a Level 30, and so on.
The Sentencing Commission estimates that 78 percent of defendants convicted of crack cocaine offenses will benefit from the guideline change with an average sentence reduction of 16 months. With approximately 5,000 crack defendants sentenced each year, this reform will have substantial impact even if the sentence reductions are relatively modest.
During the vote on the amendment, six of the seven Commissioners made statements to the effect that this amendment is a modest step toward alleviating some of the disparity in sentencing of crack defendants but it is not a solution to the problem because Congress needs to address the mandatory minimum sentencing statutes, over which the Commission has no control. However, the Commissioners stressed that the guideline amendment is important because while the mandatory minimums are the most significant source of crack disparity, the sentencing guidelines contribute to that disparity. This amendment, they pointed out, helps remedy the guidelines’ contribution to crack disparity.
The Commission will be releasing a new crack cocaine report to Congress in mid-May at which time we expect them to urge Congress to take legislative action to reform crack cocaine mandatory minimums. FAMM, which worked hard to support the “crack minus two” amendment, is already carrying that message to key members of the House and Senate Judiciary committees, a number of whom have expressed an interest in pursuing legislative reform of crack mandatory minimum penalties
Early release for extraordinary and compelling reasons expanded
The other exciting reform included in the package of amendments sent to Congress today is a policy statement to instruct judges when they consider whether to reduce a prisoner's sentence for extraordinary and compelling reasons. This is sometimes referred to as "compassionate release." The law gives the responsibility to the Bureau of Prisons (BOP) to bring a motion to the sentencing court when extraordinary and compelling reasons justify. The BOP brings such motions only rarely and to date only in cases of disabling illness or the imminent death of the prisoner. This policy statement provides guidance to courts considering such motions and substantially expands the grounds for reduction of sentence under 18 USC § 3582(c)(1)(A)(i)
It lays out some of the grounds for early release:
(A) Extraordinary and Compelling Reasons: Provided that the defendant meets the requirements of subdivision (2) [the defendant is not a danger to the safety of any person or to the community] such reasons "exist under any of the following circumstances:
(i) the defendant is suffering from a terminal illness;
(ii) the defendant is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility for which conventional treatment promises no substantial improvement;
(iii) the death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or minor children; or
(iv) as determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (i), (ii) and (iii).
(B) Rehabilitation of the Defendant - Pursuant to 28 USC § 994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reasons for purposes of subdivision (1)(A).
Policy statement usefulness
It is important to remember that the policy statement does not change the fact that only the Bureau of Prisons can make a motion for a sentence reduction. That said, the BOP, under 18 U.S.C. § 3582(c)(1)(A)(i) can move for sentence reduction for extraordinary and compelling reasons if it finds the reason exists and the reduction is consistent with applicable policy statements of the Sentencing Commission.
This new policy statement might also be of use to a defendant awaiting sentencing who is the only family member capable of caring for his or her minor child or children. Such a defendant should consider citing the new provision to support an argument that such a circumstance is an appropriate basis for varying from the guidelines.
Unlike guidelines amendments, policy statements are not subject to congressional approval in the same way that proposed guideline amendments are. The Commission announced that the new policy will take effect with the other guideline amendments on November 1.
FAMM fought hard over a number of years to convince the Sentencing Commission to provide needed guidance to sentencing courts considering early release motions. We will keep a close eye on how the BOP handles the new, expanded policy, in light of the BOP’s proposed new rule, that would strictly limit the circumstances under which it could bring a motion for early release to the court.
Other sentencing guideline amendments sent to Congress
The Sentencing Commission approved roughly a dozen amendments. For a full description of the amendments please visit the Commission’s website at www.ussc.gov.
Read other FAMM sentencing guideline news