Following yesterday’s hearing by the US Sentencing Commission on whether to make “Drugs Minus Two” retroactive or not, the Justice Department has issued a statement supporting limited retroactivity.

For those who are just joining the conversation, earlier this year the Sentencing Commission sent an amendment to Congress which would lower all drug sentencing guidelines by two levels.  If Congress does nothing within 180 days, it automatically becomes law. In practical terms, it would lower the sentencing guidelines for drug offenses by an average of 11 months per defendant, according to FAMM.

In their statement, the DoJ tried to apply Solomonic wisdom by supporting retroactivity for some but not others:

“We believe that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders that has resulted in significant prison overcrowding, and that imprisonment terms for those sentenced pursuant to the old guideline should be moderated to the extent possible consistent with other policy considerations,” [Sally Yates, the U.S. Attorney for the Northern District of Georgia] said.  Yates said. Under the plan supported by the department, Yates added, “retroactivity would be available to a class of non-violent offenders who have limited criminal history and did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending.”

Sounds reasonable.  Until you consider that the DoJ is supporting the bill’s application to all offenders henceforth by supporting the “Drugs Minus Two” amendment in the first place.  Even for those who would benefit from retroactivity, none would be automatically released from jail — all applications be reviewed, and one would assume that people deemed too violent to be released would be turned down.

As Mary Price, General Council for FAMM tweeted, “DOJ worried about numbers. Their solution? Just say “no” to many. Guess they can’t trust their partners, including judges who will consider all.”

It’s basically a political document that doesn’t make a whole lot of sense, but makes the DoJ seem like they are being cautious and prudent.

In February the National Association of Assistant United States Attorneys (NAAUSA) issued a statement opposing passage of the Smarter Sentencing Act, which would make crack cocaine sentencing disparity reform retroactive.  It sounds like they just don’t want their handiwork undone by sentencing reform that might release people they put in prison, and the DoJ is indulging them.

FDL also supports the passage of the Smarter Sentencing Act, which is designed to reduce the US prison population among non-violent offenders.

More on the Smarter Sentencing Act: