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The DOJ's retroactivity proposal: fewer than 27K eligible for shorter sentences

Before the US Sentencing Commission held today's hearing to consider whether to make its new sentencing guidelines retroactive, it put out a report estimating how many prisoners would be affected. Those estimates were based on what the Sentencing Commission calls "full retroactivity" — i.e. having judges consider the cases of everyone who received a longer sentence for a drug crime when they were convicted than they'd get if they were sentenced today (well, as of November, when the new guidelines go into effect going forward). The Commission concluded that 51,061 people would be eligible to have a judge consider reducing their sentences.

The Department of Justice's counterproposal of "limited retroactivity" — preemptively disqualifying certain types of offenders from even having their cases considered — would obviously apply to fewer than 51,000 people. But the Sentencing Commission has told me they don't plan to run a separate analysis considering the impact of the DOJ proposal, unless they're asked to by federal judges or Congress. They're planning to vote on whether to make the new guidelines retroactive on July 18th, so they don't have much time for further research.

However, the report the Sentencing Commission already put out does include some details about who would be included in "full retroactivity," which give some hints as to how many people the DOJ would exclude. Because some of these categories overlap, it's not possible to give a definite answer for how many people would be eligible for shorter sentences under the DOJ's plan. But here's how many people would be disqualified under each individual limitation the DOJ wants:

  • Anyone whose criminal history was more serious than "Level II": 24,017 inmates would be disqualified
  • Anyone who got a mandatory minimum sentence for a gun crime: 5,404 inmates would be disqualified
  • Anyone whose original sentence was increased because they had a "dangerous weapon": (the US Sentencing Commission report didn't break down how many eligible inmates had their sentences increased for this reason)
  • Anyone whose sentence was increased because they used or threatened to use violence when they committed their crime: (the US Sentencing Commission report didn't break down how many eligible inmates had their sentences increased for this reason)
  • Anyone who played an "aggravating" role in the crime: 7,968 inmates would be disqualified
  • Anyone whose sentence was increased for obstructing justice: 2,506 inmates would be disqualified
Again, it's not clear how many inmates fall under two or more of these categories. The only thing that can be said for sure is that the DOJ plan would reduce the number of eligible inmates from about 51,061 to, at most, 27,044 inmates — the number who have insignificant criminal histories ("Level I" or "Level II"). That cuts the number of eligible inmates nearly in half. And it's certainly likely that some of those 27,044 people would be disqualified under one of the other criteria.