New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Release of Non-Violent Federal Drug Offenders Long Overdue

The United States houses a quarter of the world’s prison population.  The Justice Department has an annual budget of about $27 Billion, a third of which is spent on operating the federal Bureau of Prison’s 120 facilities.  Further, since 1980, the US population has grown by about a third, while the federal prison population has grown by about 800%.  It is estimated that federal prisons are currently operating at about 40% over capacity.  Much of this resulted from the harsh sentences imposed for drug-related crimes in the 1980s and 1990s, when the approach to this class of offenders was mass-incarceration.

In April, 2014, the United States Sentencing Commission, the body responsible for formulating sentences for federal offenses, generated new guidelines that reduced the penalties for non-violent drug crimes.  It later said that the revised guidelines could be applied retroactively to many inmates serving long sentences for narcotics-related offenses, leading to inmate requests for reduced sentences.

The Commission’s actions on this issue coincide with bipartisan efforts to reverse the mass-incarceration approach to drug crimes.  Indeed, a bipartisan group of senators recently proposed substantial revisions to federal sentences geared toward reducing mandatory minimum sentences and granting early release to inmates serving sentences disproportionate to their offenses.

Sentence reductions are not automatic under the revised drug guidelines.  Instead, the Commission decided to leave the decision to reduce sentences to individual federal judges who, in turn, were directed to consider public safety in reaching conclusions in individual cases.  Thus, an inmate must petition a judge who then decides whether to grant the requested reduction.  Among other things, the judge reviews the inmate’s behavior while in prison, and makes an assessment as to whether the inmate will act violently if released early.  Since the process started, judges nationwide have been granting about 70 sentence reductions per week.  On average, an eligible inmate’s sentence is being reduced by approximately two years.

The Justice Department has responded quickly to critics of the reduced sentences, calling the sentence reductions modest and pointing out that most eligible inmates will already have served a significant portion of their sentence.  Additionally, many of the inmates are undocumented aliens who will be deported.  In addition to the Commission’s actions, the Justice Department has instructed US Attorneys to not charge low-level, non-violent narcotics offenders who are not connected to large drug organizations or gangs with crimes that carry long mandatory sentences.

The releases that have been approved thus far were delayed so as to allow the Bureau of Prisons time to prepare for a large body of released inmates who will be placed under supervision and/or into re-entry programs.  The first group of inmates – approximately 6,000 – are currently scheduled to be released from October 30 to November 2, 2015.  This is believed to be one of the largest, if not the largest, release of federal inmates in US history.  The Commission estimated that the change in the applicable guidelines could result in the early release of about 46,000 of the country’s approximately 100,000 narcotics offenders.  The upcoming release of 6,000 inmates is the first step in that process.

Law enforcement critics of this action assert that the inmates being released are likely to recidivate, having been hardened by already serving long sentences.  Further, they claim that many of these inmates will be homeless when released, and are lacking job skills.

The criticism of law enforcement is not invalid.  In fact, inmates who are released from custody after having served long prison terms require considerable assistance to re-establish themselves and succeed as productive citizens.  But assuming that these newly released drug offenders will fail without devoting any effort to addressing their issues is not proof of anything.  Further, it is widely recognized that the mass-incarceration approach to drug crimes has swallowed up considerable resources, but has accomplished nothing of long-term value.  Moreover, demographic data show that the harsh sentences previously handed out for drug crimes impacted disproportionately on poor minority communities, raising questions of fairness and even-handed treatment by the justice system.  Finally, there is the issue of cost – criminal justice resources are always tight, and the mass-incarceration approach has proven extremely wasteful.  Given prior experience, the best course appears to be to at least give the new approach a chance to succeed, and then review the results in the near future with an eye toward making any necessary modifications.