Conservative Judge Defends Retroactivity of Drug Sentencing Guidelines

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In April 2014, the U.S. Sentencing Commission issued new sentencing guidelines for drug offenders by two offense levels and, a few months later, voted to make the change retroactive. According to Families Against Mandatory Minimums, some 10,000 federal prisoners were eligible for re-sentencing under the new guidelines. Applicants were reviewed on a case-by-case basis and approximately 6,000 were released between the end of October and early November.

For decades, bad laws passed by well-intentioned lawmakers have ravaged mostly poor and minority communities and have cost taxpayers billions while doing little to stem drug use or stop the drug trade. Several states, both red and blue, are turning to drug treatment and rehabilitation to address drug crime. The U.S. Sentencing Commission’s revision of its guidelines, known as “All Drugs Minus Two,” is just one of many that either have been adopted by the federal government or are currently under consideration in Congress to reform the criminal justice system.

Although the U.S. Sentencing Commission should be applauded for the change, some are directing fire at the Obama administration. Sen. David Vitter, R-La., for example, is making the release of the prisoners an issue against his Democratic opponent in his campaign for governor of Louisiana. Similarly, House Judiciary Committee Chairman Bob Goodlatter, R-Va., blasted the commission in a recent piece at the conservative publication, National Review.

“The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety,” Goodlatte wrote. “Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.”

Goodlatte may come across like a hardened drug warrior determined to punish anyone whose life got off track, but, to his credit, he recently introduced the Sentencing Reform Act. His bill would expand the safety valve for certain drug offenders so they can avoid lengthy mandatory minimum sentences.

At least one member of the U.S. Sentencing Commission says Goodlatte and others who are criticizing the retroactivity of the new guidelines. Judge William Pryor was appointed to the Eleventh District Court of Appeals in 2004 as a recess appointment. Pryor was one of the judicial appointments stalled by Senate Democrats because they were deemed “too conservative.” When Senate Republicans threatened to go nuclear on the filibuster in 2005, an agreement was reached to ensure the filibuster would remain intact and the controversial judges would receive a confirmation vote.

Pryor set the record straight about what the process and the decision to make the new guidelines retroactive.

“When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition,” Pryor explained. “In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.”

“Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority,” he noted. “Indeed, Congress required the commission, whenever it lowers any guideline.”

The Bureau of Prisons has been preparing for these prisoners to re-enter society for a year. In October, the Washington Post reported that “[a]bout two-thirds of [of the prisoners] will go to halfway houses and home confinement before being put on supervised release.”

While there is no guarantee that these prisoners won’t re-offend, the U.S. Sentencing Commission has taken a step in the right direction and the Bureau of Prisons has provided them with support necessary to put their lives on the right track. The rest is up to them.

But it brings up a point worth considering, perhaps at another time, what steps should Congress and the Bureau of Prisons take to ensure that prisoners, once released, won’t re-offend. Re-entry programs that help with job placement and other policies, including “ban the box,” would go a long way to reducing recidivist behavior and turning these one-time offenders into taxpaying citizens.