Комиссия по назначению наказаний США ужесточила правила применения изменений в законе к осужденным

The U.S. Sentencing Commission, a bipartisan, independent agency, was created in 1984 to reduce sentencing disparities and promote transparency and proportionality in federal sentencing. The Commission collects, analyzes, and distributes information on federal sentencing practices and establishes and amends sentencing guidelines for the judiciary. It also regularly amends the Federal Sentencing Guidelines that federal judges must consult and calculate when sentencing individuals and organizations convicted of federal crimes. Finally, they make recommendations each Spring that, if not objected to by Congress, become law in November.  Lost in the whirlwind of news enveloping the criminal justice system this past week, the Sentencing Commission determined that, even when it votes to pass an amendment, it must often decide whether to apply the change retroactively. The Commission’s latest proposal would require five affirmative votes to make an amendment retroactive, rather than four. That would make it less likely that modifications to sentencing laws would apply to a broader swath of federal prisoners. That decision is a disturbing change of direction by the Sentencing Commission.  What is retroactivity? For those sentenced to prison, as the word suggests, it allows them to take advantage of court decisions or changes in the law that, if in place at the time of their sentencing, would have resulted in a lower sentence. But retroactivity is a nuanced measure that applies to amendments that could lower a more appropriate sentencing range, and yet is not automatic. Sounds unfair and more complex than it should be?  It is.  When Congress, the Sentencing Commission, or the Supreme Court says that a previous criminal statute needs to be changed to lessen penalties or was unconstitutional from the outset, you might conclude that those who were sentenced under the prior law would be entitled to benefit from that determination.  Not so! Even when the law is changed by court decision or Congress, those changes are not retroactive; inmates do not automatically qualify for relief. They must submit a request to the court, and federal judges retain discretion to grant or deny the reduction. A disturbing example of politics subsuming the criminal justice system and a compelling reason for granting retroactivity was the overreaction in the 1980s and 1990s to “crack cocaine.” That led to Congress passing the Anti-Drug Abuse Act of 1986, a sentencing scheme that unequally punished comparable offenses involving crack and powder cocaine — two forms of the same drug. Relying on perceived differences in the harmfulness and dangerousness of crack versus powder cocaine amid media hysteria surrounding crack cocaine, the 1986 law created a 100:1 disparity between the amounts of crack versus powder cocaine necessary to trigger particular sentences. If you possessed 3 grams of crack cocaine, you would receive a sentence 100 times greater than if you possessed 3 grams of cocaine powder.  The result: possession of a small amount of crack could lead to a 40- or 50-year sentence.  Empirical evidence has demonstrated that there was no scientific basis to support the supposed differences between crack and powder cocaine. The scheme was part of the War on Drugs and became a key contributor to a staggering rise in incarceration rates, leading to the disproportionate incarceration of black men and filling our prisons with nonviolent drug offenders. The same analysis discloses that “stacking” sentences led to similarly extraordinarily lengthy sentences.   The Bureau of Prisons grew from less than 50,000 to 220,000 inmates. The Sentencing Guidelines also abolished federal parole for all offenses after 1987: instead of being eligible for release through parole boards after 1/3 of their sentences, inmates had to serve 85% of their sentences.  In 2005, after 18 years of legal challenges over the Guidelines’ constitutionality, the Supreme Court found the Sentencing Guidelines unconstitutional. Inmates and others under post-prison supervision were hopeful that the Supreme Court’s decision would lead to retroactivity for them: new sentences based not on the Guidelines but on the judges’ discretion. It did not, because the Supreme Court decided that, rather than adjudicating thousands of applications for new sentences, those sentenced between 1987 and 2005 would receive no relief.  Then, in August 2010, President Obama signed the Fair Sentencing Act into law. Among other changes, it sought to change the Draconian crack sentences. The new law reduced the disparity between cocaine powder and crack from 100:1 to roughly 18:1, without explaining why a disparity remained. Unfortunately, the Fair Sentencing Act applied only to those sentenced after August 2010, leaving those who had been sentenced to longer prison terms prior to 2010 without retroactivity- the opportunity to apply for a reduction of their sentencing. The Sentencing Commission has estimated that roughly 12,000 to 17,000 federal prisoners serving time for crack cocaine offenses were blocked from receiving relief because their sentences were handed down before Aug. 3, 2010.  It took another eight years for Congress to pass the First Step Act of 2018, which made the 2010 crack sentencing reforms retroactive. Only then could individuals incarcerated before August 2010 seek to have their sentences reduced.  However, although the law was made retroactive, relief was not guaranteed. Inmates still had to petition a federal judge to seek relief. The Department of Justice opposed hundreds of those petitions, and judges retained discretion to deny reductions.  Approximately 4,000 people successfully petitioned federal judges and were released or had their sentences reduced. In 2021, the Supreme Court ruled that the First Step Act’s retroactivity did not apply to low-level crack offenses (convictions under 21 U.S.C. § 841(b)(1)(C)) that did not carry a mandatory minimum, leaving those individuals completely ineligible for relief.  Expanding retroactivity could lead to a more equitable justice system, reduce prison overcrowding, and reduce health costs that have hamstrung the Bureau of Prisons among aging inmates who were sentenced under prior laws.  Congress and the Sentencing Commission should be motivated to make all changes that reduce sentences retroactive. Robert Simels hosts the podcast “Injustice for All,” and serves as a Consultant on criminal justice matters.