M E M O R A N D U M
TO: Reporters and Editors
RE: Sentencing Guidelines
DA: Thursday, June 30, 2011
Last year, Congress passed a law to reduce sentencing differences between crack and powder cocaine possession offenses and directed the Sentencing Commission to issue guidelines to implement the law. The Sentencing Commission voted unanimously today that its guidelines, that on average will reduce sentences of approximately 12,000 eligible offenders by 3 years, will apply retroactively and thus cover offenders who committed their crimes before Congress changed the law.
Grassley’s comment on today’s action is below. A letter sent by Grassley and twelve members of Congress to the Chair of the Sentencing Commission can be found by clicking here. Below today’s comment from Grassley is a statement made by Grassley at the June 23 Senate Judiciary Committee Executive Business Meeting.
“The Sentencing Commission’s complete disregard for congressional intent is upsetting and offensive. The Fair Sentencing Act that was passed last year was clear that the new sentencing guidelines were to be applied only prospectively. Instead, the unelected commission today took the matter into its own hands and declared that the law would also be applied retroactively-a direct contradiction to Congress’ wishes. Unless the commission’s rulemaking authority starts complementing rather than contradicting the will of Congress, we’re going to need to take a good look at what the future of the commission is.”
Prepared Statement of Senator Chuck Grassley
Senate Judiciary Committee
Executive Business Meeting
Sentencing Commission
Thursday, June 23, 2011
Sentencing Commission
Mr. Chairman, last year, we passed the Fair Sentencing Act. That law reduced sentences for crack cocaine, and directed the Sentencing Commission to establish changes to the Guidelines. The law applied prospectively only.
Now, however, the Sentencing Commission is considering applying its crack cocaine guidelines retroactively. By its own calculations, the sentences of 12,000 inmates would be reduced.
Most of these offenders are violent and likely to reoffend. Although these offenders are now serving time for crack cocaine offenses, the vast majority have been convicted of serious crimes in the past.
According to the Commission, nearly 30 percent have been convicted of a crime that involved the use of a weapon, and 15 percent have been convicted of a firearms crime that carries a mandatory minimum sentence.
More than 70 percent of the eligible offenders under the Commission’s proposal have been convicted of multiple serious crimes. Some of these individuals have been convicted of murder, manslaughter, aggravated armed robbery, rape, and other serious violent offenses. Many committed serious crimes while on parole.
If the Commission makes its guidelines retroactive, these are the kinds of people who will be turned loose, or released sooner. This would represent a major threat to public safety.
The fact that the statute applies prospectively only should be the end of the matter. But having failed to convince Congress to make the law apply retroactively, proponents now seek an end run, to obtain retroactivity from unelected Sentencing commissioners.
Heedless of the input from myself and a number of other members of the House and Senate Judiciary Committees, I understand that the Commission will apply the guidelines retroactively.
The Sentencing Commission has shown that it will abuse its discretion if Congress gives it any opportunity for leniency. The Justice Department supports retroactivity to a large degree here. This position also abuses any leniency Congress provides. So, in the future, I will oppose any leniency for convicted criminals that this Justice Department and Sentencing Commission can abuse.
In addition to the dangers of releasing violent inmates, retroactive application of the guidelines would impose numerous costs on the Justice Department and the courts.
Inmates will file thousands of resentencing petitions. Prosecutors will be required to respond, diverting them from other priorities. Court clerks will spend time managing this additional work. Magistrate judges will review the petitions and will hold at least some hearings to resolve them. Justice Department lawyers will need to prepare for those hearings. The Marshals Service will be required to transport inmates to and from their hearings. Various clerical functions and expenses will need to be incurred if the hearings are favorable to the inmates.
Neither the Department of Justice nor the courts should have to absorb these costs. If scarce resources are to be shifted, from prosecuting crime, to addressing petitions and hearings, the Sentencing Commission should have to pay the costs associated with making its guidelines retroactive. That is what my amendment does.
The Sentencing Commission has decided to pursue a liberal agenda at all costs, disregarding significant opposition to its misguided policies, and disregarding specific Congressional intent. Perhaps my amendment will, for the first time, gain their attention.
If the Sentencing Commission is going to be nothing but a one-way liberal ratchet to apply lower sentences for convicted violent offenders, we should think about abolishing it. Perhaps we should put it out of its misery – and ours.
Mr. Chairman, I will not offer my amendment today, but I am extremely unhappy with how the Sentencing Commission is operating, and with how the kind of tough sentencing regime that we passed in 1984 has been undermined by the courts, the Justice Department, and the Sentencing Commission. This will change.
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