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January 7, 2016Download PDF

Reducing Federal Criminal Sentences

The sentences imposed on criminal offenders have been criticized as too harsh, resulting in the overcapacity of prisons and over sentencing of first time and non-violent offenders. Much of the criticism stems from the recommended sentences of United States Sentencing Guidelines (“USSG”) and other legislation. The USSG provides a sentencing range based upon the defendant’s criminal history and the severity of the offense. Although there are concerns regarding the severity of the penalties imposed upon criminal defendants, there are revisions to the USSG, legislation, and case law that can reduce or modify the sentence of a defendant.

The United States Sentencing Commission and legislators work to correct inadequacies in the sentences imposed in the criminal justice system. For instance, one of the most recent and significant amendments to the sentencing guidelines was Amendment 782 in 2014. Amendment 782 reduced the mandatory minimum penalties for offenses involving drugs and narco-terrorism under USSG § 2D1.1.

The Sentencing Commission passed this Amendment in order to alleviate the overcapacity in federal prisons. In doing so, the Commission recognized the vast impact of this Amendment, noting that approximately 46,000 offenders would benefit from the retroactive application of Amendment 782.

Under the Amendment, the base offense level of drug related offenses would be reduced by two points, which could translate to a potential sentence reduction of six months for minor offenses or five years for more severe crimes. Amendment 782, along with many other revisions to the sentencing guidelines, applies retroactively. Therefore, defendants previously sentenced to drug offenses are entitled to a sentencing reduction. Although entitled, defendants must petition the court via a motion under 18 U.S.C. § 3582 to process their requests. Some district courts provide a form for defendants to utilize in their petition to the court.

In addition to the changes by the Sentencing Commission, legislators have taken an interest in reforming the criminal justice system as well. Some of the recently proposed legislation includes:

1. Sentencing Reform and Corrections Act of 2015: Reducing mandatory sentences for individuals convicted for three drug related crimes (“three strikes law”) and inmates sentenced under the 2011 drug possession laws;

2. SAFE Justice Act: Reducing the mandatory minimum drug sentences and expanding the “safety valve” to permit courts to sentence a person below the mandatory minimum for drug and gun related offenses;

3. Smarter Sentencing Act: Decreasing the minimum sentence for non-violent drug crimes and increasing penalties for crimes related to terrorism or drug abuse; and

4. Non-Violent Offender Relief Act: Providing offenders over 45 years old with an opportunity for early release after serving more than half of their term of imprisonment
Lastly, the courts have taken action to assist in the criminal justice reform by creating an opportunity for defendants to reduce their sentences post-conviction. In Pepper v. United States, 562 U.S. 476 (2011), the Supreme Court held that at a resentencing hearing, the district court may consider the defendant’s post-sentencing rehabilitation to grant a reduction in the defendant’s sentence. In Pepper, at the time of the defendant’s resentencing hearing, the defendant was serving only the parole portion of his sentence. The Court determined that Pepper’s successful drug rehabilitation, attendance and successful performance in college, performing well at his job, and rekindling a relationship with his father were sufficient bases to support a sentence reduction.

Since Pepper, district courts have granted sentence reductions based upon positive behavior during incarceration, enrollment in educational programs, lack of violence, and maintaining employment. Although Pepper creates an opportunity for a sentence reduction, Pepper is applicable only where there is an independent basis for a resentencing hearing, such as a motion pursuant to 28 U.S.C. § 2255 challenging the constitutionality, jurisdiction, or other collateral attack on the sentence.

Together, the efforts of the Sentencing Commission, legislators and the courts demonstrate that some of criticisms of criminal justice sentencing are being addressed.