By Robert Simels
Originally published in amNewYork on
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Robert Simels writes about a proposal from the U.S. Sentencing Commission, the independent agency created in 1984 to reduce disparities in federal sentencing. When the Commission lowers a guideline, it must also decide whether people already serving sentences can benefit. The new proposal would require five affirmative votes, instead of four, to make an amendment retroactive. Simels argues that this would make relief harder to obtain.
He explains that retroactivity is never automatic. Even when a change applies to past cases, a person must ask a judge for a reduction, and the judge has discretion to grant or deny it.
To show what is at stake, Simels walks through the history of crack cocaine sentencing. The 1986 law created a 100 to 1 disparity between crack and powder cocaine. In 2010 the Fair Sentencing Act reduced that to roughly 18 to 1 but did not apply to people already sentenced, and the Commission estimated that 12,000 to 17,000 people were blocked from relief as a result. The First Step Act of 2018 finally made the change retroactive, and about 4,000 people had their sentences reduced or were released. Simels notes that a later Supreme Court ruling excluded some lower level offenses from that relief.
His conclusion is that fairness should not depend on the date a person was sentenced, and that sentence reductions should apply retroactively.
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This page is a summary prepared for robertsimels.com. The full commentary was published by amNewYork and remains on amNewYork's site.
Robert Simels. Robert Simels hosts the podcast Injustice for All and serves as a consultant on criminal justice matters. He is no longer practicing law.
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