Reduced Federal Sentences for Non-Violent Drug Offenders – It’s About Time (and money)

We have known for some time that the United States incarcerates more people than any other industrialized nation on the planet.  The federal prison system, which has grown approximately 700% since 1980, currently holds about 216,000 inmates.  Additionally, states, counties and municipalities each have their own prison systems.  It is estimated that approximately 25% of the world’s convicts are held in US prisons.

The sheer number of incarcerated inmates is only one issue.  In prison, inmate numbers translate into dollars quickly.  The current annual maintenance cost of the federal prison system alone is approximately $74 Billion.  State and local governments also have substantial budgets for their own prison systems and facilities.  For example, a recent study estimated that the New York City prison system spends approximately $168,000 per inmate each year.  This sum is considerably larger than the annual income of many American households.  Further, recidivism rates suggest strongly that a significant amount of these resources are wasted.  Some of the most recent data available show that approximately 70% of released inmates are re-arrested within three years of release.  Thus, in many cases, incarceration briefly removes someone from society, but does not necessarily address the long-term problems and issues that caused them to engage in criminal conduct.  Finally, most US offenders are incarcerated for narcotics-related offenses.

Against this backdrop, Attorney General Eric Holder is backing a broad-based effort to reduce or eliminate mandatory minimum federal prison sentences for many drug offenders.  Holder’s argument is simple.  He wants to reduce federal prison spending and re-focus prison resources on more violent offenders.  His critics respond by saying, among other things, that mandatory minimum sentences for low-level drug offenders aid in the enforcement of our narcotics laws by pressuring “smaller” defendants to cooperate with police and prosecutors in their efforts to move against larger suspects and targets.

In describing his plan, Holder estimated that the change would affect approximately 70% of defendants sentenced for narcotics trafficking offenses, and would reduce the federal prison population by approximately 6,500 inmates over the next five years.  Inmates serving sentences imposed under the current advisory guidelines may be able to apply for re-sentencing.

The mechanics are relatively straight-forward.  Under the applicable advisory guidelines provisions, a defendant convicted of an offense involving 1kg of heroin would be a level 30 (97 to 121 months), as opposed to level 32 (121 to 151 months).  It is believed that the average sentence in a federal drug case would drop from 62 months to 51 months.

It is anticipated that the United States Sentencing Commission will make its recommendations to Congress by next month.  Absent Congressional objection, the changes will be implemented by November.

This idea needs to be reviewed carefully.  As a practical matter, we spend too much on prisons, and we simply cannot afford to do it anymore.  Further, the available data on recidivism show that this money is not being spent wisely, since many defendants appear to wind up back in jail in a relatively brief period of time.  Additionally, just as often as not, the argument that low-level defendants in drug cases aid law enforcement in investigating and arresting larger players is, at least to some extent, patently silly.  Many low-level defendants refuse to cooperate against larger players out of fear (e.g., better to be alive and in jail than dead and, well, dead).  Moreover, by the time you have your proffer session in a drug case with the US Attorney and their agents, much of your client’s information will have gone stale, and is therefore useless.  The foregoing obviously is not true in every case, but certainly is true in many cases – so many, in fact, that the proposed revisions to the advisory guidelines make sense and should be adopted.  State authorities (who actually prosecute the majority of narcotics cases) should adopt similar changes for the same reasons.




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