At the end of this month, the government will release 6,000 federal prisoners over three days — the biggest prisoner release in United States history.
This isn’t sudden: The release has been in the works for more than a year, and was actually delayed so the federal government would have time to review individual prisoners’ cases and build up its capacity to help ex-prisoners reenter society. And ironically — even though it’s happening at a time when elected Democrats and Republicans alike are making efforts to reduce mass incarceration, especially for drug crimes — neither Congress nor the White House deserves credit.
An independent federal commission has already been working to guide judges toward shorter sentences for drug offenders. This fall’s prisoner release is a matter of fairness: the result of the commission’s decision that just because someone was sentenced to a long prison term during the peak of the tough-on-crime era, he shouldn’t automatically have to serve more time than he’d get if he were sentenced today. It’s also a reminder that people throughout the criminal justice system are taking a hard look at incarceration and trying to reduce it — and that the biggest changes aren’t necessarily the highest-profile ones, or the most politically contested.
The beginning of a process that could release more than 40,000 prisoners
The 6,000 prisoners who are due to be released between October 30 and November 2 are all serving time for federal drug crimes.
Democrats and Republicans in Congress (as well as the Obama administration) have stressed in recent years that too many people are going to federal prison for too long for nonviolent drug offenses. Both the House and Senate have introduced bills this summer to tackle one of the causes: mandatory minimum laws that require judges to sentence drug offenders to a certain amount of time. But mandatory minimums aren’t the only factor in determining how long someone goes to prison for; the exact sentence is set by a judge, with the assistance of federal sentencing “guidelines” that recommend a sentence within a certain length (based on the seriousness of the crime and the offender’s criminal history).
The sentencing guidelines are just that: guidelines. In practice, though, judges treated them as hard-and-fast rules for many years. Only in the past few years has it become common for judges to sentence someone to less time than the guidelines recommend. That makes the guidelines tremendously influential. And they’re set by an independent commission — the US Sentencing Commission. The USSC is part of the federal government, but its decisions aren’t subject to the veto of the attorney general or the president.
Going back to the end of the George W. Bush administration, the Sentencing Commission has quietly been revising federal guidelines to recommend shorter sentences for drug offenders — and to allow some current prisoners serving time for the same crimes to apply for the reductions to apply to their sentences as well. But they’ve only tackled one drug at a time. In 2011 — after Congress reduced the sentencing disparity between crack and powder cocaine — the Sentencing Commission decided to allow current prisoners sentenced for crack cocaine to apply for shorter sentences.
Last year, the commission decided to make a change to sentencing recommendations for all drugs. One of the factors that goes into calculating a recommended sentence range is the weight of drugs the offender had: That weight gets assigned a particular “level” of seriousness, which is part of determining the severity of the crime. But policymakers and law enforcement professionals have decided that drug quantity is less important than other factors in deciding how serious a crime is. In 2014, the Sentencing Commission changed its recommendations so that any given weight of a given drug was two “levels” less serious than it had previously been — a reform called “Drugs Minus Two.” The result: The ultimate recommendation given to judges would be about 11 months shorter.
The Sentencing Commission could have decided just to apply that to new court cases. Instead, though, it decided to allow some prisoners sentenced under the old (now-obsolete) guidelines to apply for shorter sentences under the new guidelines.
As many as 46,000 prisoners are eligible to apply for shorter sentences under the change; that’s not much of the total US prison population (most of which is housed in state prisons, not federal ones), but it’s a very large chunk of federal drug offenders. And it’s an order of magnitude bigger than anything the Obama administration itself has done: The White House has made a big deal out of its power to commute (shorten) sentences, but it’s only done it for 89 prisoners.
Logically speaking, of course, some of those prisoners would end up qualifying for less prison time than they’d already served — someone who’d served all but six months of a 10-year sentence, for example, could get resentenced to a nine-year sentence and immediately become eligible for release. That meant that at the beginning of the resentencing process, a bunch of prisoners were going to end up getting released at once — everyone whose new release dates landed in the past — followed by a slower trickle of early releases who hadn’t yet served all of their new sentence terms when they were resentenced.
The release has been in the works for more than a year
The Sentencing Commission’s reforms were subject to a congressional veto — Congress had 90 days to decide that it didn’t want shorter drug sentences for new prisoners or current ones. But Congress didn’t take any action to stop it. So the new guidelines went into effect in November 2014.
But there was a catch. The Obama administration wasn’t exactly a huge fan of the idea of letting tens of thousands of prisoners apply for shorter sentences (though the Department of Justice was more supportive than it had been in the past).The administration succeeded in persuading the commission to delay releasing prisoners: Judges started looking at applications for shorter sentences in November 2014, but the government wouldn’t have to release prisoners until November 2015.
The delay was designed to give the administration enough time to prepare for the early release and reentry of thousands of prisoners, by building up capacity for federal probation officers, halfway houses, etc. And indeed, it spent that time sending many of the prisoners to halfway houses or home confinement early — one Department of Justice official told New York magazine’s Jesse Singal that over half the prisoners scheduled to be “released” at the end of the month have, in practice, already been released.
Over the past year, federal judges, defense attorneys, and prosecutors have looked over thousands of applications for shorter sentences. Not every prisoner sentenced under the old recommendations was automatically given a shorter sentence — judges looked at behavior in prison, the possible threat to public safety each prisoner posed, etc. Ultimately, though, thousands of prisoners have been resentenced to shorter sentences. And about 6,000 of them have been given sentences that theoretically should have ended already. Those are the prisoners getting released at the end of this month.
The release shouldn’t be overwhelming — but it could be a strain
The phrase “prisoner release” carries a mental image of somebody just flinging a set of prison gates wide open — or of the scene in Ghostbusters when all the ghosts escape and terrorize Manhattan. That is not what is happening here.
Yes, 6,000 is more prisoners than the federal government has ever released early at once before. Typically, the federal government releases 55,000 prisoners a year — so the prisoner release at the end of this month is doing in a few days what the government typically does in about five weeks. (Unsurprisingly, federal releases are only a fraction of all prisoner releases: 10,000 people are let out of prison in the US every week, but most of those are state prisoners.)
But only 4,000 or so of those are actually going to be released into society.
About 2,000 of the prisoners scheduled for “release” at the end of the month are noncitizens. Some of them are unauthorized immigrants, who will probably be detained and deported immediately after they’re released from federal prison. Others are legal immigrants, who will have to go in front of an immigration judge to argue that, even though they’ve been convicted of a crime, it isn’t a crime that violates the terms of their legal status. (They’ll almost certainly be detained while their cases are pending.) Those who lose their cases will be deported.
The remaining 4,000 won’t exactly be set free without guidance. They’ll all be under some form of supervised release. Thousands of them are already in halfway houses or under home supervision, and the rest are being sent there.
This isn’t to say that all of them will get the supervision they need to transition to the real world: For someone who’s been in prison since before the advent of the smartphone, even getting to a halfway house to check in can be overwhelming. Since this is the largest single release of prisoners in history — and because it’s happening on top of the thousand-plus regularly-scheduled releases from federal prison each week — it will be an interesting test of how well suited the federal criminal justice system really is to helping prisoners reenter society. That’s something it could be called on to do much more often if broader criminal justice reforms pass Congress, or if the Obama administration starts granting sentence commutations to more prisoners (something it’s been promising to do since last year but hasn’t really ratcheted up yet).
But the prisoner release should be seen as an experiment, not as a gamble with public safety. The Sentencing Commission has studied the people who got released early under the last few reforms it made. It found that prisoners who were released early weren’t more likely to commit new crimes than their peers. That was one of the strongest arguments for making this reform retroactive to begin with. It’s also the best reason not to worry about an influx of new ex-prisoners now.