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The DOJ supports a retroactive sentence guideline change

I'm at the US Sentencing Commission's public hearing considering whether the recent changes to drug sentencing guidelines should be made retroactive. More to come, but the news so far is that the Department of Justice actually supports making the amendments retroactive -- in some cases.

The DOJ's position, presented by US Attorney Sally Quillian Yates, is that there should be "limited retroactivity." The Sentencing Commission's proposal calls for federal judges to look over each case to consider whether the inmate should get a shorter sentence. (Federal judges, represented by the Judicial Conference , support this plan.) But the DOJ thinks that the following people should be explicitly prohibited from getting their sentences reduced:

  • Anyone whose criminal history was more serious than "Level II" (see here for more on that)
  • Anyone who got a mandatory minimum sentence for a gun crime
  • Anyone whose original sentence was increased because they had a "dangerous weapon"
  • Anyone whose sentence was increased because they used or threatened to use violence when they committed their crime, or played an "aggravating" role in the crime
  • Anyone whose sentence was increased for obstructing justice

The Sentencing Commission estimates about 51,000 people would qualify for reduced sentences if the changes were made fully retroactive. It's not clear how many of those people would qualify under the DOJ's proposed limitations.

But even limited support for retroactivity is a big shift for the DOJ. The Sentencing Commission has made two changes to sentencing guidelines that it then made retroactive: in 2007 and 2011. In 2007, the DOJ (under President Bush) opposed any reduction to the sentences of current prisoners; in 2011, the DOJ didn't take a position either way. In both cases, the Sentencing Commission went ahead and voted for retroactivity anyway, so there's no guarantee they'll follow the DOJ's lead now. But it's the first time that the DOJ has supported a Sentencing Commission change that would mean any prisoner would get a shorter sentence than a judge originally gave him.