In the Case of Fair Sentencing Act Retroactivity, USSC Report Lends Resounding Endorsement

Retroactive application of the Fair Sentencing Act (FSA) which became law in 2010 and reduced the sentencing disparity for crack and powder cocaine from 100-to-1 to 18-to-1 has been a hotly contested issue in the criminal justice space. The primary concern from those opposed to retroactivity, including Attorney General Jeff Sessions, is that allowing offenders to petition the court for a review and reduction in their sentence could result in violent criminals being released to the streets, putting public safety at risk.

Proponents of FSA retroactivity cite the process required to reduce a sentence as a sufficient guard against such criminals being released. Retroactivity does not mean automatic sentence reductions and jail doors opening, but simply allows the a defendant to petition for full court review of his or her case to determine if their case is fit for a reduced sentence under the law.

The Senate Judiciary Committee marked up the Sentencing Reform and Corrections Act, sponsored by Sen. Chuck Grassley (R-Iowa), in February of this year. Section 105 of the bill includes retroactive application of the Fair Sentencing Act. Retroactivity of the Fair Sentencing Act is also a provision in the Smarter Sentencing Act, S. 1933, introduced by Sen. Mike Lee (R-Utah). In the past, the Smarter Sentencing Act has been cosponsored by Sens. Ted Cruz (R-Texas) and David Perdue (R-Ga.).

Prior to the markup, Attorney General Sessions sent a letter from the Department of Justice to Sen. Grassley, the chairman of the committee, expressing his concerns with the bill — specifically opposing the provision allowing retroactive application of the Fair Sentencing Act.

“[T]his bill would allow judges to retroactively reduce sentences…In so doing, it risks putting the very worst criminals back into our communities and eviscerates the lawful results of either structured plea agreements or trials,” Sessions wrote on behalf of the Department of Justice.

An amendment was offered in committee to directly address this concern by striking the retroactivity provision. The amendment failed by a vote of 6-15. As a result, Sen. Cruz withheld his vote from the underlying bill. Nevertheless, it was reported out favorably by a vote of 16-5.

These concerns underlying the chief opposition to retroactivity of the Fair Sentencing Act are widely regarded as baseless by supporters of retroactivity. This includes Chairman Grassley, who expressed this during markup following Sen. Cruz’s remarks bringing up his amendment.

“Eliminating the retroactivity eliminates a very vital part of this bill…[i]t’s important to note that if this bill becomes law, not a single person will automatically be released from prison, nor will a single sentence be automatically reduced,” he said. “Instead, a court has to review all the circumstances that include the public safety, criminal history, and the impact on the victims.”

Together, as Chairman Grassley notes, the comprehensive review process would ensure public safety is not compromised as a result of allowing reduced sentences. Those who receive reduced sentences would be receiving them after careful consideration by the courts of the facts, and would not pose any more risk to society upon early release than they would had they been required to serve their whole sentence under previous law. This is the goal of retroactivity.

This week, the United States Sentencing Commission put out a report, “Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions,” that confirms the arguments of those in favor of retroactive application of the Fair Sentencing Act. The Commission’s report analyzed recidivism rates of two groups of federal crack cocaine offenders — one group which received reduced sentences through existing limited ability to apply FSA retroactively, and the other group which served their full sentence.

The Commission asked this simple research question: “Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?” A “yes” answer to this question would indicate that the concerns of opponents of sentencing reform are valid and that applying FSA retroactively would in fact increase crime and pose a public safety threat.

On the other hand, a “no” answer to this question would validate the arguments of proponents of FSA retroactivity, proving that the process in place to determine which offenders will receive reduced sentences is an ample guard against the retroactivity provisions applying to those who are potential public safety threats. A “no” answer is what the USSC found.

According to the report, “The recidivism rates were virtually identical” for both groups, and “[o]ver a three-year period following their release…each [group] had a recidivism rate of 37.9 percent.” Additionally, “approximately one-third of offenders who recidivate in both groups…had court or supervision violation as their most serious recidivist event.”

The answer USSC found to their question was not only a resounding “no,” but also was an indication that often, the recidivist charge of the offenders that did recidivate was for the lowest possible, nonviolent violation possible. Together, these simple facts confirm long-held beliefs of proponents of FSA retroactivity, and undermine the fear-driven narrative opponents of sentencing reform in their attacks on the impact of retroactivity.

Armed with this new knowledge, directly from the United States Sentencing Commission, the arguments in favor of retroactivity are strengthened and should provide a new avenue to persuade others that this provision — either as a standalone bill or as part of a broader bill like the Sentencing Reform and Corrections Act — is not cause for opposition to the bill entirely. In fact, it is cause for support.