On November 1st, an estimated 6,000 drug offenders were released from federal prisons in what is considered the largest one-time early release in this nation’s history. In April 2014, the United States Sentencing Commission (USSC) approved a change to the federal sentencing guidelines, often referred to as “Drugs Minus Two,” which reduced sentences for non-violent drug offenses. These releases came over a year after the USSC voted to make the sentencing change retroactive. News of these releases created some confusion and fear about the types of offenders that are being returned to our communities. According to a report by the USSC, an estimated 229 of the 6,000 prisoners were released to California, which leaves many wondering how communities in the Fresno, Hanford, and Visalia areas will be affected. The vast majority of offenders being released are non-violent offenders, and every prisoner being released had to petition the court for approval.
In deciding which inmates qualified for early release, federal judges looked at each offender’s petition on a case-by-case basis to determine which offenders posed a safety risk to the community. If a federal judge determines an inmate poses a risk to the community, the petition will be denied and the sentence will not be reduced. Although over 17,000 prisoners petitioned for early release under the new guidelines, just over 13,000 were approved, and only 6,000 of those approved are being released at this time. The majority of those offenders will be placed on supervised release, which is similar to probation. Others will be placed in halfway homes until they are able to transition back into the community. Additionally, nearly one-third of those released are non-citizens who will be released to U.S. Immigration and Custom Enforcement for deportation. An analysis by the Department of Justice estimates that, on average, many of the offenders being released have already served at least 8.5 years of a 10 year sentence, and many others would have already been granted early release had the USSC not required the one year delay to process inmate petitions.
Before the sentencing change, many first time drug offenders received prison terms that were often higher than the mandatory minimum sentences imposed by Congress. These sentences were also often significantly higher than sentences that would have been imposed for the same conduct had their cases been handled in California state court. Under the new guidelines, these offenders are able to receive sentences that are proportionate to their crimes, which are often below the Congressional mandatory minimum sentences. On average, eligible offenders will see their sentences reduced by approximately two years. For example, under the new guidelines, a first time offender who possesses 10 ounces of crack cocaine is now eligible for a sentence as low as 4.25 years, which is a meaningful departure from the prior available sentence of up to 6.5 years. The reduction of sentences and release of inmates is all part of a larger plan to reduce the federal prison population, which currently houses more than 205,000 inmates.
Jeff Hammerschmidt, criminal defense attorney at Hammerschmidt Law Corporation, has been following “Drugs Minus Two” since it was initially proposed by the USSC. For more information on these changes, please visit his Avvo legal guides: