ARTICLES FAREWELL, FAIR CRUELTY: AN ARGUMENT FOR RETROACTIVE RELIEF IN FEDERAL SENTENCING. Jeremy Haile* INTRODUCTION

Transcription

1 ARTICLES FAREWELL, FAIR CRUELTY: AN ARGUMENT FOR RETROACTIVE RELIEF IN FEDERAL SENTENCING Jeremy Haile* I INTRODUCTION N 2015, a remarkable thing happened in Congress: a bipartisan group of Senators announced a criminal justice reform bill that would scale back some of the toughest measures enacted at the height of the war on drugs. 1 And rather than being attacked as soft on crime, the lawmakers were greeted with nearly unanimous applause. The Sentencing Reform and Corrections Act, authored by Senate Judiciary Chairman Chuck Grassley (R-Iowa), Majority Whip John Cornyn (R-Texas), Minority Whip Dick Durbin (D-Illinois), and others, would take a number of steps to ease harsh mandatory penalties, give judges more discretion in sentencing, and create sentence-reduction incentives for prisoners who take part in rehabilitative programming. 2 The warm reception to the bill reflected a growing consensus on Capitol Hill that harsh mandatory drug sentences have fueled an unsustainable expansion of the federal prison system and exacerbated racial disparities while providing little benefit to public safety. As Senator Mike Lee (R-Utah) said, Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust. 3 Recognizing these problems, lawmakers have introduced a number of proposals to mitigate the harsh impact of mandatory minimum sentencing. 4 If * Federal Advocacy Counsel, The Sentencing Project, Washington, DC. Thanks to my boss and mentor Marc Mauer, on whose shoulders so many stand. Thanks to Nazgol Ghandnoosh and Frank Bowman for reading and providing comments on earlier drafts. Thanks also to the incarcerated individuals at FCI Cumberland who visited with me about their long sentences for nonviolent drug offenses. 1. Carl Hulse & Jennifer Steinhauer, Sentencing Overhaul Proposed in Senate with Bipartisan Backing, N.Y. TIMES, Oct. 2, 2015, at A19, available at 10/02/us/politics/senate-plan-to-ease-sentencing-laws.html. 2. Sentencing Reform and Corrections Act, S. 2123, 114th Cong. (2015). 3. Press Release, Mike Lee, U.S. Senator, Lee, Durbin Introduce Smarter Sentencing Act of 2015 (Feb. 12, 2015), available at 4. In addition to the Sentencing Reform and Corrections Act and its House companion, H.R. 3713, 114th Cong. (2015), other notable sentencing reform bills include the Smarter Sentencing 635

2 636 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 enacted, these or similar measures could have a significant impact on the federal prison population in the future. However, an underappreciated feature of these bills is their ability to operate retroactively, which could potentially reduce sentences for thousands of individuals who have already been sentenced. Rarely, if ever, in the modern era, has Congress directly reduced statutory penalties for people serving time in federal prison. 5 By embracing retroactivity, Congress would establish the principle even a new norm that if penalties are reduced prospectively, it is unfair to deny the benefit to those sentenced in the past. As Chairman Grassley said, retroactivity is the just and moral thing to do. 6 And as Senate Judiciary Ranking Member Patrick Leahy (D-Vt.) said of unjust mandatory minimum penalties, It is time we fix our mistakes. And it is essential that this fix apply retroactively so that those currently paying the price for our mistakes are given a second chance. 7 This Essay argues that in addition to ensuring fairness, retroactivity is critical to expediting decarceration, correcting racial injustice, and promoting public safety. If Congress fails to apply sentencing reforms retroactively, it will miss an opportunity to shorten excessive prison terms for thousands of individuals a disproportionate number of them black and brown men. There is little evidence that reducing sentences for these individuals would increase their risk of recidivism or lead to higher crime rates. Nor do concerns about administrability, finality in sentencing, or separation of powers create an impediment to retroactive relief. Therefore, as Congress takes up legislation to address the harsh impact of mandatory minimum sentencing, retroactivity is an important element of reform. I. GROWTH OF THE FEDERAL PRISON SYSTEM AND THE IMPACT ON PEOPLE OF COLOR Over the past four decades, the federal prison population has risen at an alarming rate doubling, doubling, and then doubling again. 8 In 1980, about Act, H.R. 920, 114th Cong. (2015), and the Sensenbrenner-Scott SAFE Justice Reinvestment Act, H.R. 2944, 114th Cong. (2015). 5. Not only has Congress not directly applied reduced statutory penalties retroactively, but also it has rarely reduced penalties at all. See Dorsey v. United States, 132 S. Ct. 2321, 2341 n.1 (2012) (Scalia, J., dissenting) (noting that congressional legislation reducing criminal penalties is, in this day and age, very rare ). 6. Sen. Chuck Grassley, Prepared Statement on the Sentencing Reform and Corrections Act (Oct. 22, 2015), available at Grassley%20Statement.pdf ( [B]ecause the old minimums produced some severe and excessive sentences, judges will have a chance to consider whether to apply these changes to inmates sentenced under the old laws. This is the just and moral thing to do. ). 7. Press Release, Sen. Patrick Leahy, At SJC Hearing, Leahy Urges Senators to Support Criminal Justice Reform (Oct. 19, 2015), available at 8. See SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS 1, available at (last updated Dec. 2015).

3 Spring 2016] FEDERAL SENTENCING RELIEF ,000 individuals were incarcerated in federal facilities. 9 Today, the federal prison system houses nearly 200,000 people. 10 Despite the construction of more than two dozen federal prisons since 1994, 11 federal prisons were 30% over capacity as of October 2014, including 52% over capacity at higher security facilities. 12 The dramatic expansion of the federal prison system has had a profound impact on disadvantaged communities of color. It is well known that African Americans, in particular, have borne the greatest burden of the nation s fourdecade long experiment with mass incarceration. Black men are incarcerated at a rate six times greater than white men and black women at a rate twice that of white women. 13 Of young black males born in 2001, one in three can expect to spend at least a year of his life in prison. 14 Though African Americans comprise about 13% of the overall population in the United States, 15 they represent about 38% of the federal prison population on any given day. 16 The federal justice system has contributed to these disparities. The growth of the federal prison system and associated racial disparities are largely the result of changes in drug policy, not crime rates. 17 Since the launch of the modern war on drugs, the number of people incarcerated for a federal drug offense has soared. In 1980, about 4,700 individuals were incarcerated for a federal drug offense. 18 By 2011, the number had grown to 94,600 a 20-fold 9. Id. at Population Statistics: Generate Inmate Population Reports, FED. BUREAU PRISONS, (last updated May 12, 2016). 11. See NATHAN JAMES, CONG. RESEARCH SERV., R42937, THE FEDERAL PRISON POPULATION BUILDUP: OVERVIEW, POLICY CHANGES, ISSUES, AND OPTIONS 29 fig.13 (2014), Oversight of the Bureau of Prisons: First-Hand Accounts of Challenges Facing the Federal Prison System: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015), (select Download Testimony hyperlink under Panel II: The Honorable Michael E. Horowitz) (statement of Michael E. Horowitz, Inspector Gen., U.S. Dep t of Justice). 13. See TRENDS IN U.S. CORRECTIONS, supra note 8, at SENTENCING PROJECT, REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS HUMAN RIGHTS COMMITTEE REGARDING RACIAL DISPARITIES IN THE UNITED STATES CRIMINAL JUSTICE SYSTEM 1 (Aug. 2013), Race%20and%20Justice%20Shadow%20Report.pdf. 15. SONYA RASTOGI ET AL., U.S. CENSUS BUREAU, THE BLACK POPULATION: 2010, at 3 tbl.1 (Sept. 2011), 06.pdf. 16. Inmate Statistics: Inmate Race, FED. BUREAU PRISONS, statistics/statistics_inmate_race.jsp (last updated Mar. 26, 2016). 17. TESTIMONY OF MARC MAUER BEFORE SENATE JUDICIARY COMMITTEE ON SENTENCING REFORM AND CORRECTIONS ACT OF 2015, at 4 (Oct. 19, 2015), available at [hereinafter MAUER TESTIMONY] (statement of Marc Mauer, Exec. Dir., The Sentencing Project). 18. TRENDS IN U.S. CORRECTIONS, supra note 8, at 3.

4 638 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 increase in three decades. 19 Today, half of all federal prisoners are serving time on a drug conviction. 20 Of people sentenced for federal drug offenses in 2015, nearly one quarter were black, and half were Latino, 21 even though whites use and sell drugs at roughly the same rates. 22 As Senator Cory Booker (D-New Jersey) wrote, The war on drugs has turned out to be a war on people and far too often a war on people of color and the poor. 23 Harsh mandatory sentencing policies have super-charged these dynamics. Between 1995 and 2010, the number of individuals incarcerated in federal facilities who were convicted of an offense carrying a mandatory minimum penalty rose from 40,104 to 111,545, an increase of 178.1%. 24 As of fall 2010, nearly 40% of all federal prisoners were subject to a mandatory minimum penalty at sentencing, 25 including more than half of those individuals having been convicted of a drug offense. 26 At sentencing for drug offenses, only 39% of blacks received relief from a mandatory minimum penalty compared to 64% of whites who received that benefit. 27 The imprisonment of so many African American and Latino adults has come at tremendous costs for communities of color. For incarcerated individuals themselves, prison can cause severe psychological distress, even mental illness, and it can increase the risk of suicide. 28 After release from prison, formerly incarcerated individuals are punished for having been punished, facing legal barriers to employment, housing, education, public benefits, and even voting. 29 Moreover, former prisoners do not suffer the[se] consequences alone; the children of incarcerated parents are more likely to drop out of school, engage 19. See id. 20. See id. 21. See U.S. SENTENCING COMM N, 2015 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl.34, [hereinafter 2015 SOURCEBOOK]. The disproportionate number of Latinos in federal prison in part reflects geographic issues, rather than discrimination, related to drug law enforcement along the nation s southern border. 22. NAT L RESEARCH COUNCIL, THE GROWTH OF INCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES 60 (Jeremy Travis et al. eds., 2014), available at CORY BOOKER, UNITED 181 (2016). 24. U.S. SENTENCING COMM N, 2011 REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 81 (Oct. 2011), available at [hereinafter MANDATORY MINIMUM PENALTIES REPORT] (follow Chapter Four hyperlink). 25. Id. at xxix (follow Executive Summary hyperlink). 26. Id. at xxxviii. 27. Id. at 159 (follow Chapter Eight hyperlink). 28. NAT L RESEARCH COUNCIL, supra note 22, at See INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 5 (Marc Mauer & Meda Chesney-Lind eds., 2002) (quoting an American Bar Association task force that noted that as a result of his conviction [an offender] may be ineligible for many federallyfunded health and welfare benefits, food stamps, public housing, and federal educational assistance he may no longer qualify for certain employment and professional licenses he may lose the right to vote ).

5 Spring 2016] FEDERAL SENTENCING RELIEF 639 in [illegal activity], and subsequently be incarcerated themselves. 30 As Congressman Jim Sensenbrenner (R-Wisconsin) testified, Mass incarceration tears families apart and deprives children of their fathers and mothers. 31 In communities with the highest levels of incarceration, the absence of men particularly black men has created a gender ratio in some neighborhoods of approximately 60 men for every 100 women, 32 contributing to more povertystricken families and thereby leading to less stable communities. II. THE CASE FOR RETROACTIVE RELIEF In recent years, policymakers have taken steps to address these problems by recalibrating federal sentencing policy. 33 In 2007, the U.S. Sentencing Commission reduced guideline penalties for offenses involving crack cocaine and made those changes retroactive, reducing sentences for more than 16,000 individuals. 34 In 2010, Congress passed the Fair Sentencing Act, 35 which reduced sentences for about 6,000 individuals convicted of crack offenses in subsequent years. 36 In 2011, the Commission applied reduced crack cocaine guideline penalties retroactively, reducing sentences for nearly 7,000 individuals. 37 In 2013, Attorney General Eric Holder s Smart on Crime Initiative directed prosecutors to avoid triggering mandatory minimums in certain lowlevel drug cases, 38 helping bring the proportion of cases carrying mandatory 30. SENTENCING PROJECT, INCARCERATED PARENTS AND THEIR CHILDREN, TRENDS , at 1 (Feb. 2009), incarceratedparents.pdf. 31. Written Testimony of Rep. F. James Sensenbrenner, Jr. (July 14, 2015), inal-justice.pdf (statement of Rep. F. James Sensenbrenner, Jr.). 32. Donald Braman, Families and Incarceration, in INVISIBLE PUNISHMENT, supra note 29, at See, e.g., CHARLES COLSON TASK FORCE ON FED. CORR., TRANSFORMING PRISONS, RESTORING LIVES: FINAL RECOMMENDATIONS OF THE CHARLES COLSON TASK FORCE ON FEDERAL CORRECTIONS (Jan. 2016), Final-Recommendations-January-2016.pdf; Jeremy Haile, Federal Prisoners Decline, but It s Not a Trend Yet, OPEN SOC Y FOUND. (Oct. 5, 2015), voices/federal-prisoners-decline-it-s-not-trend-yet. 34. KIM STEVEN HUNT & ANDREW PETERSON, U.S. SENTENCING COMM N, RECIDIVISM AMONG OFFENDERS RECEIVING RETROACTIVE SENTENCE REDUCTIONS: THE 2007 CRACK COCAINE AMENDMENT 2 (May 2014), available at recidivism-among-offenders-receiving-retroactive-sentence-reductions-2007-crack-cocaine-amend ment (select Download the PDF hyperlink). 35. Fair Sentencing Act of 2010, Pub. L. No , 124 Stat (2010). 36. U.S. SENTENCING COMM N, REPORT TO THE CONGRESS: IMPACT OF THE FAIR SENTENCING ACT OF 2010, at 26 (Aug. 2015), available at news/congressional-testimony-and-reports/drug-topics/201507_rtc_fair-sentencing-act.pdf#page =30 [hereinafter IMPACT OF THE FSA]. 37. IMPACT OF THE FSA, supra note 36, at U.S. DEP T JUSTICE, SMART ON CRIME: REFORMING THE CRIMINAL JUSTICE SYSTEM FOR THE 21ST CENTURY 3 (Aug. 2013), smart-on-crime.pdf.

6 640 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 minimum penalties to its lowest level in many years. 39 And in 2014, the Commission decided to retroactively apply its drugs-minus-two amendment, making approximately 40,000 federal prisoners eligible to seek shorter sentences. 40 These measures have contributed to a significant reduction in the federal prison population for the first time in three decades. However, as the Charles Colson Task Force on Federal Corrections observed, the decrease is greatly overshadowed by the tremendous growth that preceded it. 41 Reform measures pending in Congress would accelerate the pace and scale of decarceration by significantly reducing the broad application of mandatory minimum sentencing. However, in order to ensure fairness, expedition of the reduction of the federal prison population, and correction of unwarranted disparities, it is critical to apply reforms retroactively to individuals who have already been sentenced. Retroactivity is, first and foremost, a matter of fairness. Two individuals who commit the exact same offense should not receive different punishments merely because they are sentenced on different dates. It should be the conduct and characteristics of the individual sentenced, not the date of sentencing, that weigh most heavily in determining the severity of punishment. 42 This is one reason why Congress requires the U.S. Sentencing Commission, whenever it lowers any guideline penalty, to consider whether to make that particular change retroactive. 43 It is arbitrary to impose a harsher punishment on a person sentenced the day before penalties are reduced than on a similarly situated person sentenced the day after penalties are reduced. Under international law, fairness dictates that previously sentenced individuals should benefit from a legislature s approval of more lenient penalties See GLENN R. SCHMITT & HYUN J. KONFRST, U.S. SENTENCING COMM N, OVERVIEW OF FEDERAL CRIMINAL CASES: FISCAL YEAR 2014, at 6 (Aug. 2015), FY14_Overview_Federal_Criminal_Cases.pdf (noting that half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in ). 40. See U.S. SENTENCING COMM N, FREQUENTLY ASKED QUESTIONS: RETROACTIVE APPLICATION OF THE 2014 DRUG GUIDELINES AMENDMENT 2, files/pdf/amendment-process/materials-on-2014-drug-guidelines-amendment/ _faq.pdf (last visited Apr. 3, 2016). 41. See CHARLES COLSON TASK FORCE ON FED. CORR., supra note 33, at 19; Haile, supra note See 18 U.S.C. 3553(a) (2012) U.S.C. 994(u) (2012) ( If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced. ). 44. CONNIE DE LA VEGA ET AL., UNIV. S.F. SCH. OF LAW, CRUEL AND UNUSUAL: U.S. SENTENCING PRACTICES IN A GLOBAL CONTEXT 65 (May 2012), available at International Covenant on Civil and Political Rights, art. 15, available at pages/ccpr.aspx ( If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. ). Although the U.S. ratified

7 Spring 2016] FEDERAL SENTENCING RELIEF 641 Retroactivity is also essential to expediting the reduction in the federal prison population and correcting unjust racial disparities. In 2015, the U.S. Sentencing Commission analyzed the impact that the Sentencing Reform and Corrections Act, as introduced, would have on the federal prison system. 45 The Commission estimated that the bill s prospective reforms would have reduced sentences for more than 4,000 individuals each year. 46 However, if these reforms were made retroactive, an additional 12,000 prisoners would have been eligible to seek sentence reductions as of fall Because African Americans have been disproportionately punished under mandatory sentencing laws, they would be the greatest beneficiaries of retroactively reduced mandatory penalties. Retroactivity could have a particularly dramatic impact if applied to people sentenced for crack cocaine offenses prior to the adoption of the Fair Sentencing Act. 48 Since the enactment of the Anti-Drug Abuse Act of 1986, which imposed much harsher punishments for crack offenses than for powder cocaine, more than 80% of federal crack defendants have been African American. 49 Although the Fair Sentencing Act was intended to partially rectify this unfairness, 50 it did not benefit individuals sentenced under the previous law. 51 Thus, a person sentenced for a crack offense the day before the Fair Sentencing Act was enacted would likely have received a longer sentence than a similarly situated person sentenced the day after enactment. As of late 2015, about 5,800 federal prisoners were still serving time under the old law. 52 Applying the Fair Sentencing Act retroactively the ICCPR on June 8, 1992, it did so with reservations, including on retroactivity: That because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15. Declarations & Reservations on the International Covenant on Civil and Political Rights, ch. IV.4., PREPARED STATEMENT OF JUDGE PATTI B. SARIS FOR THE HEARING ON S. 2123, SENTENCING REFORM AND CORRECTIONS ACT OF 2015 (Oct. 19, 2015), available at (select Prepared Statement of Judge Pattie B. Saris hyperlink) (statement of Hon. Patti B. Saris, Chair, U.S. Sentencing Comm n) [hereinafter SARIS STATEMENT]. 46. Id. at Id. at 7. An amendment announced on April 28, 2016 would strike provisions that would have retroactively reduced the mandatory minimum penalties for certain firearms offenses and for individuals previously convicted of serious violent felonies, thus reducing the retroactive impact of the legislation. See Sentencing Reform & Corrections Act Expands Bipartisan Support, CHUCK GRASSLEY (Apr. 28, 2016), MAUER TESTIMONY, supra note 17, at See id. at 4; 2015 SOURCEBOOK, supra note 21, at tbl.34; DEBORAH J. VAGINS & JESSELYN MCCURDY, ACLU, CRACKS IN THE SYSTEM: TWENTY YEARS OF THE UNJUST FEDERAL CRACK COCAINE LAW, at i (Oct. 2006), available at cracksinsystem_ pdf. 50. Press Release, Sen. Dick Durbin, Durbin Introduces Bill to Eliminate Sentencing Disparity Between Crack and Powder Cocaine (Oct. 15, 2009), press-releases/durbin-introduces-bill-to-eliminate-sentencing-disparity-between-crack-and-powdercocaine. 51. See Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012). 52. SARIS STATEMENT, supra note 45, at 4.

8 642 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 would allow these individuals to receive shorter sentences in accordance with the new penalties, reducing the federal prison population and correcting the racial injustice associated with crack cocaine sentencing. In addition, retroactivity could have a substantial impact if applied to other mandatory penalties. For example, the Sentencing Reform and Corrections Act, as introduced, would have reformed so-called stacking provisions under 18 U.S.C. 924(c) such that the mandatory minimum triggered by the use or possession of a firearm during the commission of another offense would be limited to individuals who have been previously convicted and sentenced. According to the U.S. Sentencing Commission, approximately 2,500 federal prisoners would have been eligible for a sentence reduction under this provision. 53 According to one study, 924(c) stacking penalties are the most common non-drug mandatory minimum and the one most responsible for driving sentencing disparities. 54 Section 924(c) cases hit black men particularly hard both because they are more frequently arrested for gun crimes and because of large apparent disparities in prosecutors exercise of charging discretion. 55 Blacks would also benefit from the retroactive reduction of mandatory life sentences and 20-year mandatory minimums. Since 1993, 72% of people receiving a life sentence under federal third-time drug offense laws have been African American. 56 Of people receiving 20-year mandatory penalties for a prior drug offense, 59% were African American, and only 20% were white. 57 The retroactive application of reforms 58 to these laws under the Sentencing Reform and Corrections Act, as introduced, would have allowed up to 2,265 incarcerated individuals to seek a sentence reduction. 59 Thus, the retroactive application of these reduced penalties could significantly reduce the federal prison population and correct unjust disparities. 53. Id. 54. Sonja B. Starr & M. Marit Rehavi, Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker 19 (U. Mich. L. Sch. Law & Econ. Research Paper No , 2012), available at (follow Open PDF in Browser hyperlink). 55. Id. at 50 (emphasis omitted). See also MANDATORY MINIMUM PENALTIES REPORT, supra note 24, at 363 (follow Chapter 12 hyperlink) (noting that to the extent the mandatory minimum penalties for firearms offenses are unduly severe, these effects fall on Black offenders to a greater degree than on offenders in other racial groups ). 56. Paul J. Hofer, Impact of the Sentencing Reform and Corrections Act of 2015 (S. 2123), 28 FED. SENT G REP. 116, 116 (2015). 57. Id. 58. The bill would reduce the mandatory minimum penalty under the federal three strikes law from life imprisonment to 25 years and the 20-year mandatory minimum for a previous drug offense to 15 years. 59. SARIS STATEMENT, supra note 45, at 8.

9 Spring 2016] FEDERAL SENTENCING RELIEF 643 III. CONSISTENCY WITH PUBLIC SAFETY Despite occasional warnings to the contrary, 60 recent experience suggests that retroactivity is not at odds with public safety. In 2007, the U.S. Sentencing Commission moved to retroactively reduce penalties for excessively punitive crack cocaine offenses. At the time, some predicted doom. 61 But in a 2014 recidivism study, the Commission found no difference in recidivism rates for those individuals released under the reduced penalties compared to those individuals whose sentences were not reduced. 62 In other words, shorter prison terms did not increase crime rates. Experience at the state level also shows that retroactive reforms can be achieved without jeopardizing public safety. 63 For example, after New York retroactively reduced its Rockefeller-era drug penalties, crime did not increase. 64 Such results are unsurprising, as there is little evidence that harsh penalties, particularly for drug offenses, have a significant impact on crime reduction. According to the National Research Council, the increase in incarceration over recent decades may have caused a decrease in crime, but the magnitude [of the reduction] is highly uncertain and the results of most studies suggest it was unlikely to have been large. 65 Furthermore, after reviewing the research literature on the deterrent effect of mandatory sentencing laws, the Council found 60. For example, at a Senate Judiciary Committee meeting in 2015, Republican Senator Ted Cruz of Texas said, I cannot go along with legislation that could result in more violent criminals being released to the streets and potentially more lives being lost. Executive Business Meeting of full Judicial Comm. on Sentencing Reform and Corrections Act (Oct. 22, 2015), (load and play video). At the same meeting, Republican Senator David Perdue of Georgia said that if retroactive reforms are adopted, we re adding potentially thousands of repeat violent felons into the mix. Id. 61. See Letter from Richard L. Delonis, President, Nat l Ass n of Assistant U.S. Attorneys, to Ricardo H. Hinojosa, Chair, U.S. Sentencing Comm n (Oct. 30, 2007), available at 11_009.pdf. 62. HUNT & PETERSON, supra note 34, at 15. In 2007, the Commission amended the Drug Quantity Table for crack cocaine so that the quantities that trigger mandatory minimum penalties also trigger base offense levels 24 and 30, rather than 26 and 32 a two-level decrease in guideline levels similar to those proposed in the instant amendment. Id. at 1. The Commission then followed for five years those offenders who received a reduced sentence under the two-level decrease and compared them to a group of individuals released in the year prior to the amendment who had not received a sentence reduction. Id. The Commission found no statistically significant difference in recidivism rates for those offenders released under the revised guidelines (43.3% recidivism) compared to those who served their sentence under the higher base offense levels (47.8% recidivism). Id. at MARC MAUER & NAZGOL GHANDNOOSH, SENTENCING PROJECT, FEWER PRISONERS, LESS CRIME: A TALE OF THREE STATES 7-9, Fewer_Prisoners_Less_Crime.pdf (last visited May 18, 2016). 64. Id. at NAT L RESEARCH COUNCIL, supra note 22, at 337.

10 644 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 that the evidence is insufficient to justify the conclusion that these harsher punishments yield measurable public safety benefits. 66 Mandatory sentencing is limited for a number of reasons. Research on deterrence over many years demonstrates that mandatory penalties do not significantly reduce crime because they address the severity of punishment, not certainty. 67 Because many people engaged in criminal activity do not expect to get caught, few think about the penalties they will face if convicted. 68 Furthermore, due to long mandatory sentences, many individuals are kept in federal prison well past the point where they present a serious threat to public safety. This is because people generally age out of crime. 69 The 18-year-old who is given a long sentence for robbing a pharmacy is much less likely to engage in crime when he is The impact of long prison sentences, therefore, produces diminishing returns for public safety. 71 And while there is no strong consensus on the incapacitative effects of incarceration, the effect is especially weak for drug offenses due to the ready replacement of sellers in the drug trade. 72 When a street-level dealer is incarcerated for his or her involvement in a drug sale, this, in effect, creates a job opportunity for another individual to enter that market. 73 As long as there is a demand for illegal drugs, there will be a ready supply of sellers. Meanwhile, because public safety resources are finite, spending on federal prisons approximately $7 billion per year 74 has come at the expense of investments in more effective crime reduction programs, drug and mental health treatments, and other interventions. 75 Though fairness dictates that retroactivity should apply automatically, the Sentencing Reform and Corrections Act, for example, establishes an additional safeguard whereby an individual serving time under certain repeat offender 66. Id. at Marc Mauer, The Impact of Mandatory Minimum Penalties in Federal Sentencing, 94 JUDICATURE 6, 7 (2010), available at Viewpoint.pdf. 68. Michael Tonry, Purposes and Functions of Sentencing, 34 CRIME & JUST. 1, (2006). 69. See, e.g., Alfred Blumstein & Kiminori Nakamura, Redemption in an Era of Widespread Criminal Background Checks, NAT L INST. JUST. J., June 2009, at 10, 11, available at ( It is well known and widely accepted by criminologists and practitioners alike that recidivism declines steadily with time clean. ). 70. Id. at MARC MAUER, A PROPOSAL TO REDUCE TIME SERVES IN FEDERAL PRISON: TESTIMONY TO CHARLES COLSON TASK FORCE ON FEDERAL CORRECTIONS 3-4 (Mar. 11, 2015), available at Mauer, supra note 67, at Id. 74. Oversight of the Bureau of Prisons: First-Hand Accounts of Challenges Facing the Federal Prison System: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, supra note 12, at 1 (statement of Michael E. Horowitz, Inspector Gen., U.S. Dep t of Justice) (noting that In FY 2015, the budget for the BOP was $6.9 billion, and in FY 2016, the Administration has requested a 6.1 percent increase in funding for BOP. The Department projects that the costs of the federal prison system will continue to increase in the years ahead, even as the total number of federal inmates has fallen slightly. ). 75. MAUER TESTIMONY, supra note 17, at 2.

11 Spring 2016] FEDERAL SENTENCING RELIEF 645 provisions would have to petition the sentencing court for relief. 76 In such cases, a motion would be brought to the court, which would have the authority to apply reduced penalties retroactively only after considering traditional sentencing factors, 77 any danger to the community, and the individual s conduct in prison. In addition, federal prosecutors would be required to conduct a particularized inquiry in order to assess whether a sentencing reduction would be consistent with public safety. In other words, retroactivity under the Senate bill would hardly amount to a jailbreak for violent felons, as some have alleged. 78 Finally, it is important to keep the issue of retroactivity in context. Every year, more than 600,000 people are released from state or federal prisons about 12,000 a week. 79 Thus, providing retroactive relief to approximately 12,000 federal prisoners, as the Sentencing Reform and Corrections Act originally anticipated, 80 would hardly be cause for alarm. Furthermore, many of these retroactive sentence reductions would have mitigated, not eliminated, long sentences. For example, the retroactive application of reduced mandatory minimums under 18 U.S.C. 924(c) would still have required many individuals to serve decades in federal prison. 81 IV. POTENTIAL OBJECTIONS TO RETROACTIVITY Despite the intuitive appeal of retroactivity and its consistency with public safety, objections are sometimes raised on administrative, jurisprudential, or constitutional grounds. One concern commonly raised about retroactivity is that it imposes a burden on the court system. For example, in 2014, the Judicial Conference testified that the retroactive application of the U.S. Sentencing Commission s drugs-minus-two amendment would place significant demands on judicial, probation, and pretrial service systems. 82 However, since 2014, federal courts have reviewed thousands of petitions from prisoners seeking sentencing 76. U.S. Senate Comm. on Judiciary, The Sentencing Reform and Corrections Act of 2015, at 1-2 (Oct. 1, 2015), Reform%20and%20Corrections%20Act%20Section%20by%20Section.pdf. 77. These factors are outlined at 18 U.S.C. 3553(a) (2012). 78. Seung Min Kim, Cotton Leads Effort to Sink Sentencing Overhaul, POLITICO (Jan. 25, 2016, 5:20 AM), #ixzz3zDQvypUT. 79. See JEREMY TRAVIS ET AL., URBAN INST., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY 1 (June 2001), UploadedPDF/from_prison_to_home.pdf. 80. Hofer, supra note 56, at SARIS STATEMENT, supra note 45, at 9 (citing Armed Career Criminal Act, 18 U.S.C. 924(c) (2012)). 82. TESTIMONY OF HON. IRENE M. KEELEY TO THE UNITED STATES SENTENCING COMMISSION ON THE RETROACTIVITY OF THE DRUG GUIDELINE AMENDMENT 2 (June 10, 2014), available at /Testimony_Keeley.pdf.

12 646 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 reductions under the drugs-minus-two amendment, 83 and there is little evidence that these petitions have brought the federal court system to a halt. Moreover, the Commission previously applied its 2007 and 2011 amendments to the crack cocaine guidelines retroactively. 84 The relative ease with which federal courts implemented these decisions suggests that the burden to courts would be manageable if, for example, the Fair Sentencing Act were to be applied retroactively. 85 Even if the burden on courts is significant, it would be outweighed by the interest in avoiding injustice for an entire class of individuals serving time under penalties that Congress has deemed excessive. Another objection to retroactivity is rooted in a desire for finality in the criminal justice system. 86 Once a court has duly considered the facts of a case, applied the law, and rendered a final criminal judgment, society has an interest in preserving that judgment. Re-opening a case can be costly and less reliable. 87 Revisiting the facts of the case might potentially cause trauma to crime victims. 88 Moreover, without finality, the deterrent value of punishment could be reduced. 89 However, as Professor Doug Berman has argued, there should be a distinction between criminal judgments (where society s interest in finality is strong) and sentencing (where society s interest in finality is relatively weak). 90 Unlike trials, which are backward-looking determinations of fact, sentencing decisions can be improved with the passage of time as societal perspectives on punishments evolve. 91 As the drafters of the Model Penal Code have observed, it is unsound to freeze criminal punishments of extraordinary duration into the knowledge base 83. U.S. SENTENCING COMM N 2014 DRUG GUIDELINES AMENDMENT RETROACTIVITY DATA REPORT tbl.1 (Dec. 2015), retroactivity-analyses/drug-guidelines-amendment/ drug-amendment-report.pdf. 84. Press Release, U.S. Sentencing Comm n, U.S. Sentencing Commission Votes Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses (Dec. 11, 2007), Press Release, U.S. Sentencing Comm n, U.S. Sentencing Commission Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment to the Federal Sentencing Guidelines Retroactively (June 30, 2011), See TESTIMONY OF MARC MAUER BEFORE THE UNITED STATES SENTENCING COMMISSION REGARDING RETROACTIVITY OF CRACK COCAINE GUIDELINES AMENDMENT 2 (June 1, 2011), available at See Harold J. Krent, Retroactivity and Crack Sentencing Reform, 47 U. MICH. J.L. REFORM 53, 64 (2013), available at &context=mjlr. 87. See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 WAKE FOREST J.L. & POL Y 151, 169 (2014), available at files/2014/04/4-1-article-berman.pdf. 88. See id. at See, e.g., Meghan J. Ryan, Taking Another Look at Second-Look Sentencing, 81 BROOK. L. REV. 149, 156 & n.36 (2015) (quoting Teague v. Lane, 489 U.S. 288, 309 (1989)), available at ( Without finality, the criminal law is deprived of much of its deterrent effect. ). 90. See Berman, supra note 87, at See id.

13 Spring 2016] FEDERAL SENTENCING RELIEF 647 of the past. 92 Once Congress rejects harsh penalties as unnecessary to keep society safe, there is little benefit in keeping thousands of individuals imprisoned under the obsolete law. 93 In terms of deterrence, it is inconceivable that any person would decide to engage in criminal activity on the chance that one day the penalty for his or her offense might be retroactively reduced. 94 Though prosecutors may argue that retroactivity turn[s] the finality of judicial decisions on their head, 95 the state has a greater interest in doing justice than it does in ensuring finality in sentencing. 96 Finally, some opponents of retroactivity raise objections on constitutional grounds, arguing that statutory retroactivity is prohibited by separation of powers between Congress and the judiciary or between Congress and the President. For example, there is some support for the view that if a legislature retroactively reduces penalties, it may interfere with the final judgments of the courts or with the clemency power of the executive. 97 However, the Constitution contains no express prohibition on retrospective laws that make punishment less severe. 98 While the Supreme Court has yet to rule directly on the question of whether Congress can apply reduced statutory criminal penalties retroactively, the Court has implied that sentencing proceedings can be re-open[ed] if Congress makes clear its intention to do so. 99 Further, a Sixth Circuit panel went so far as to tacitly urge Congress to apply the Fair Sentencing Act retroactively to people serving time under unfair crack cocaine penalties MODEL PENAL CODE: SENTENCING cmt. b (Tentative Draft No. 2, 2011). 93. See S. David Mitchell, In with the New, Out with the Old: Expanding the Scope of Retroactive Amelioration, 37 AM. J. CRIM. L. 1, 15 (2009), available at See id. at Letter from former federal officials to Mitch McConnell, Majority Leader, U.S. Senate & Harry Reid, Minority Leader, U.S. Senate (Dec. 10, 2015), available at Indeed, an inscription at the U.S. Department of Justice building in Washington reads: The United States wins its point whenever justice is done its citizens in the courts. 97. See Kevin Barry, Going Retro: Abolition for All, 46 LOY. U. CHI. L.J. 669, (2015); Krent, supra note 86, at See Mitchell, supra note 93, at 22 (citing Bryant Smith, Retroactive Laws and Vested Rights, 5 TEX. L. REV. 231, 234 (1927)). Conversely, applying enhanced penalties retroactively is clearly prohibited by the Ex Post Facto Clause of the U.S. Constitution. U.S. CONST. art. I, 9, cl Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012) (noting that disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing sentences (unless Congress intends re-opening sentencing proceedings concluded prior to a new law s effective date) ) United States v. Blewett, 746 F.3d 647, 660 (6th Cir. 2013) ( In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction. Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive. Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. ).

14 648 UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 47 CONCLUSION We are now at a moment of historic opportunity for federal sentencing reform. After decades of ever-increasing incarceration, prison populations have stabilized, and even declined, without harming public safety. In Congress, a bipartisan group of lawmakers has introduced the most substantial criminal justice reform legislation since the inception of the tough on crime movement. Speaker of the House Paul Ryan said that criminal justice reform is one of a handful of areas where there is common ground with President Barack Obama. 101 Referring to harsh mandatory minimum sentencing, Deputy Attorney General Sally Yates said, [O]ur thinking has evolved [a]nd it s time that our legislation evolved as well. 102 The principles animating Congress to act prospectively on sentencing reform fairness, justice, and public safety apply equally to people who have already been sentenced. By applying reduced penalties retroactively, Congress can show that it is serious about promoting decarceration, correcting racial injustice, and promoting public safety. If retroactivity is denied, it could undermine confidence in the criminal justice system among those who do not receive the benefit of reduced penalties, adding to the perception that the criminal justice system is a contemporary system of racial control. 103 Failure to extend reduced penalties retroactively would also perpetuate injustice, as thousands of individuals would remain imprisoned under sentencing policies that Congress has deemed excessive Nicholas Fandos, Paul Ryan Defends Compromise on Spending, N.Y. TIMES, Dec. 21, 2015, at A19, available at Evan McMorris-Santoro, Justice Department: You Don t Need Mandatory Prison Sentences to Put the Right Drug Criminals in Jail, BUZZFEED (July 22, 2015, 10:16 AM), MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2012).