ACLU Sets the Record Straight on Federal Drug Sentencing Retroactivity

December 3, 2007 12:00 am

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Issue takes national stage, but ACLU fears facts about mandatory minimums aren’t fully considered


Washington, D.C. – The American Civil Liberties Union today reiterated its support of retroactivity for defendants serving longer sentences than required by federal law after the question was raised in this weekend’s presidential debate. The United States Sentencing Commission (USSC) last month changed federal sentencing guidelines to make sure people would not serve more than the federal mandatory minimum sentence for crack offenses. The USSC is now considering whether to make those changes to the guidelines retroactive, applying them to offenders currently in prison, not just those who were arrested before the new guidelines were implemented.

The ACLU aims to correct misconceptions about retroactivity.

  • The Federal Sentencing Guidelines required offenders to serve sentences longer than mandatory minimum sentences. The USSC has acknowledged that the federal sentencing guidelines for crack cocaine crimes resulted in sentences that in many cases were longer than federal mandatory minimums. If this guideline amendment is enacted retroactively, a person would serve his or her mandatory sentence before being released.
  • Released prisoners would not flood our streets tomorrow. Prisoners would be released over a period of 30 years.
  • All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed. People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.

The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy:

“The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply. Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time.”

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