On April 27, 2023, the United States Sentencing Commission submitted to Congress amendments to the federal sentencing guidelines that would recommend lower sentences for certain defendants. If these changes are applied retroactively, some 18,775 people in federal prison could become eligible for a sentencing reduction—including 3,288 individuals who could be eligible for immediate release. Mary Price of Families Against Mandatory Minimums joins Rattling the Bars to discuss the proposed amendments and what they could mean for thousands of prisoners and their families.
Mary Price is General Counsel of FAMM. She directs the FAMM Litigation Project and advocates for reform of federal sentencing and corrections law and policy before Congress, the U.S. Sentencing Commission, the Bureau of Prisons, and the Department of Justice.
Public comments can be made through FAMM’s website. The deadline for submitting public comments is June 23, 2023.
Production: Cameron Granadino
Studio Production: David Hebden
Post-Production: Cameron Granadino
Transcript
Mansa Musa: Welcome to this edition of Rattling the Bars, I’m Mansa Musa. As of 2022, there was an estimate of 145,602 people sentenced under the federal jurisdiction for a number of so-called offenses. On April the 27th, 2023, the US Sentencing Commission submitted to Congress amendments to the Federal Sentencing Guidelines that would recommend lower sentences for certain defendants, including those with so-called point status. The Commission is considering applying these changes retroactively, meaning incarcerated people whose sentence would be lower today may be eligible for a sentence reduction. Around 18,775 people might be eligible for a sentence reduction. And of those, an estimated 3,288 people would be immediately eligible for release. Here to talk about this is Mary Price, General Counsel for Families Against Mandatory Minimum. Welcome, Mary,
Mary Price: Thank you so much. I’m delighted to be with you and I’m so glad you and your audience are interested in this topic.
Mansa Musa: Okay, as we should be. First, tell our audience a little about yourself and the organization that you’re working for so we can get them to see just how you wound up in this space.
Mary Price: Absolutely. Thanks for the introduction. So, I’m the general counsel of FAMM, and that role at FAMM, I work on a number of different things, including the Federal Sentencing Guidelines that you described earlier. FAMM is an organization of currently and formerly incarcerated people and many others who have joined together to urge sentencing and corrections reform in both the Federal Bureau of Prisons and the federal system, as well as in the state’s.
So we work to lift up the voices of people who have been touched by, or affected by, the criminal legal system so that they can advocate for reform. Now, FAMM believes really strongly in the power of storytelling. Bringing the impact of the laws and the policies that our lawmakers pass to their attention so that the lawmakers can reconsider their positions and perhaps change their trajectory. So that’s a very important aspect to us, and we are very proud of the work that we do with all of our members.
Mansa Musa: All right. So now, let’s start going down the road of what we are looking at and what FAMM is trying to get done. Okay. So the Federal Sentencing Commission is responsible for developing the sentencing guidelines for anyone under federal jurisdiction. Am I correct?
Mary Price: That’s correct. So the Sentencing Commission writes the guidelines that govern sentences below, between, and above the mandatory minimum sentences. That’s correct.
Mansa Musa: Okay. And they are mandated by Congress, and whatever recommendations they make has the force of law. Am I correct?
Mary Price: To some extent.
Mansa Musa: Explain the difference.
Mary Price: Yes, of course. Originally, mandatory minimums judges, except in a very few circumstances, cannot avoid imposing a mandatory minimum if it applies to a certain conviction. And for many years that was also the case with the sentencing guidelines. The sentencing guidelines became advisory a number of years ago following a decision in the Supreme Court called Booker.
And I won’t go into all the details, but what it means is that judges have a lot more flexibility with the guidelines than they do with the mandatory minimums. And they’re able to depart from those guidelines, and more importantly, to vary, to find a better place to rest a sentence if the calculated guideline is either too long or too short. And generally, judges sentence, in many cases, below those guidelines, because they can be very strict.
Mansa Musa: Right. Okay. So now we are at the juncture now where the Sentencing Commission is recommending a change in the sentencing guidelines. Walk us through the changes that they’re recommending, and then walk us through how everybody’s going to be affected by the variations, like the point system.
Mary Price: Exactly. Okay. So it’s a little bit complicated, but you can think of the sentencing guidelines as a great big grid with 43 boxes this way and 6 boxes this way. Those boxes that go across the top are criminal history points, and there’s a system within the guidelines that says, you’ve been arrested fairly recently or you’ve had three prior convictions. There’s a variety of complicated rules, but it’ll put you somewhere in that box. And as you go over on the box, your sentence gets higher, and higher, and higher on the recommended guideline sentence.
So with this change, the US Sentencing Commission took a look at some of those criminal history rules and they decided to, going forward, lower the impact of two of them. Now those two have to do with what are called status points. So that’s when an individual is convicted of a crime while serving another sentence. So for example, being incarcerated, or being on probation, or being on supervised release, if any of those things happened, it used to add points going across the top to make the sentence greater. And those status points were found to have very little impact on one’s recidivism. In other words, adding status points didn’t do anything to make our community safer because it somehow kept people incarcerated longer, thus not being able to re-offend.
The other proposal that the Commission has is to reduce the sentences for people who have zero criminal history points. Now, right now that first box going across the top, that very first one is for people who have either zero or one criminal history point. And it’s going to take that zero out, essentially, for a number of people. Not everyone. But it is going to lessen the impact of putting you in that criminal history box.
Mansa Musa: And what happens, from what you explained to our audience is, because you have an arbitrary system where you’re giving me points to increase my sentence based on my prior. And if I didn’t have a prior, but I’m going to be put in the category of having a prior or the effect of having a prior, that’s automatically going to increase my sentence – And I want to get into this part of the conversation – Regardless of what I did coming in the door, regardless of what I did at this juncture, because of this point system, because of this sentencing mechanism, everything is on the table. I was locked up before I had priors, I’ve been in and out of the system. Therefore, regardless of what I’m doing right here, what I’m here for right now, this sentencing mechanism is going to say, it ain’t what you’re here for now, it’s what you did in the past. Am I correct?
Mary Price: Well, it’s a combination.
Mansa Musa: Okay, explain.
Mary Price: Yeah, it is a combination. So your guideline for the offense that one is convicted of right now is handled on this axis. Remember I told you it goes across the screen like this with the 43 and then with the – So on this axis there’s a number of factors including the nature of the crime of conviction. Whether there were victims, was there a gun, was there a large amount of loss, if there’s fraud. All kinds of things will be set somewhere based on the nature of your conviction, but then you can go up or you can go down based on some of those characteristics. So you may have a mitigating factor that will reduce that sentence. But anyway, you get to that point. And so that’s the current offense. And then if you have a criminal history, that’s going to move you over and that’s going to increase your guideline sentence as well.
Mansa Musa: Right. And I think that’s what I’m trying to get at. I understand that on the front end, and I agree, I understand what you’re saying that they’re going to take into account what the offense is. So if it’s a victimless offense, if it’s a property crime, if nobody was harmed, then it’s going to get factored into that. But then if I have a criminal history, regardless of what I did here, it’s going to be impacted by my criminal history.
Mary Price: Exactly correct.
Mansa Musa: And therein lies the problem. With these changes, a person in the situation I just described, I got a property crime, no victim, nobody was harmed. It might be a series of mitigators.
Mary Price: That’s right.
Mansa Musa: Under this new system, how would that play out?
Mary Price: So if you were convicted of that crime when you were serving another sentence, and by that I mean not just if you were incarcerated, but let’s say you’ve been released and you’re on probation and then you are convicted of this crime. They take the fact that you’re on probation and add points, they’re called status points. The status of committing this offense while serving that probation is going to add points and they’re going to lower that.
So right now you get two additional criminal history points which could move you over into new criminal history categories for having status points. But they are going to change that so people who receive 7 or more criminal history points, without status points and who committed the incident offense while under any criminal justice sentence, will only get one point as opposed to two added to the proceedings. So that’s one limitation that’s going to take some time off of people’s sentences.
Mansa Musa: So this is for the education of the public so they understand why y’all are asking for support. Because some people might think, well, if you can’t do the time, don’t do the crime, and therefore the time that you get for the crime, regardless of how they cut it up, is time for a crime that you committed. So in getting people to understand this, I get locked up, I’m on 5 years probation, I’ve got two years left on my probation, and I get an offense. And the offense I get is a property crime, no victims, no weapon. How would that play out in terms of these changes? Mary, first take it as if I don’t get a change versus if I do get a change. If you follow me on that?
Mary Price: I do, but it’s impossible to do that calculation.
Mansa Musa: Okay.
Mary Price: Number one, in my head. But number two, I really need to sit down and understand where the sentence is and things like that. Right now what it means is that you can have a fair amount of criminal history, up to 7 points, and if you don’t have those 7 points, then that being on status is only getting you the one. Right. But it’s hard to do the calculation of –
Mansa Musa: Okay. Okay. I understand, I understand. The reason why I’m trying to get the simplification of it is because I’m trying to – I understand the system because I went through it – But I’m trying to educate our audience on understanding that the changes that you’re asking are humane changes in terms of people. In time, you serve your sentence and serving your sentence or being given a sentence gives you hope of having a future, in terms of getting out versus not having hope because of prior history, or bad decision-making, or none of the above.
But the fact that you find yourself back in this space, and now because of your prior history, your initial sentence is going to be augmented by a number of factors that you don’t have any control over, it’s going to create him or her serving a lot more time if these things didn’t exist. So that’s what I was trying to get to understand. But walk us through what it is y’all are trying –
Mary Price: I just want to add one thing, I misspoke a little bit. You don’t get any status points unless you have 7 criminal history points and you’ve committed the incident offense while under supervision. The Sentencing Commission found that unfair and that’s what you are driving at: that this was something that was really unfair to people and it was unfairly inflating the sentence and it wasn’t helping us do anything with respect to reducing recidivism. It didn’t have any impact.
Mansa Musa: And I think that the goal of this draconian system was to, even though misinformation or misapplication was to reduce recidivism, I think that was the goal of the sentencing mechanism, to try to stop people from coming back. But that’s another conversation in itself. But tell our audience about what FAMM is trying to get done.
Mary Price: Well, let me go back and explain a little something. So these two changes, both to status points and also first offenders, that’s going to have an impact on reducing sentences for people going forward. So if the Sentencing Commission sent all of the amendments, all of the amendments included these criminal history amendments to Congress at the end of April. As you pointed out earlier, they’re going to sit with Congress until Nov. 1. So there’s a waiting period, and if Congress wants to change anything, it has to pass a bill in both Houses and has to be signed by the president to either disapprove any of these amendments or modify them.
Now, we don’t think anything’s going to happen with respect to the criminal history changes that we’ve been talking about. But here’s the other thing: while the Commission is waiting, it took a look and it has the statutory duty to explore whether a change that it makes that would lower a sentence going forward should be applied retroactively. So what that means is, if the Sentencing Commission were to declare these changes retroactive, it means that people who are currently incarcerated who meet the criteria that’s going forward – But they would meet the criteria if they were sentenced today – They get to go back and ask the sentencing court to apply those changes retroactively.
And you mentioned some numbers earlier about the numbers of people that would be affected by that. And that is a change that we think is super important and should be supported. And when the Sentencing Commission makes a change like this, it always has to do a thing called notice-and-comment. It has to publish the fact that it wants to do this and then it asks the public to comment on it. And what we always do at FAMM is to try and encourage everybody – People who are incarcerated, people on the outside, loved ones, everyone – To comment, to tell the Commission, yes, this is the right thing to do.
Because they haven’t decided to do it yet, there’s a lot of considerations: Is it going to be a lot of work, is the magnitude going to be very great? Is the difference in the sentence that people are serving now and the one they’ll get after this enough to justify making it retroactive? So they’re asking all those questions, and what they want to hear from the public is thumbs up or thumbs down and why. So we sent a note around, which you saw, saying we hope that you’ll comment on this. And we sent it both to our loved ones on the outside, but also through our core link system to our federally incarcerated members on the inside.
Mansa Musa: Okay. And why? So you say if they change it, what would be the answer? What should be the people’s answer? Why should they change it?
Mary Price: Why should they change it? Why should they make it retroactive? Well, in my view, if you determine that a system is unjust and you’re going to end that system – So for example, all the criminal history points that we’re talking about turns out to be unjust or unwarranted and we’re going to end that – There’s no reason not to go back and apply that to the people who are serving sentences that are now unjust or unwarranted. So it’s a little bit of common sense and a little bit of common justice.
We have looked at the experience of people who are serving these sentences or longer because of these criminal history points that we’re going to get rid of. And we’ve decided, based on their experience, that that’s too much and we’re going to take it out. Then the right thing to do is to go back and make sure that everybody who is sentenced under those systems gets an opportunity to make their case. It’s not a get out of jail free card, not everybody’s going to get out. The judge gets to decide on a case-by-case individualized basis, and they have to look at public safety, they have to look at all the sentencing factors, before they can say, yes, I’m going to apply this change and lower your sentence accordingly.
Mansa Musa: At least in regards to the family’s advocacy, it gives the prison population, mainly those sentenced under the federal prison guidelines, some hope. Because a lot of them, their sentences were enhanced by virtue of their criminal history, their sentence was impacted by a lot of the draconian status points that they interjected. So in that regard, it gives them hope. And when you’ve got a system where it’s as overcrowded as it is, its resources are not being offered to individuals in the system, in terms of the ability to do some things to progress. It gives a person hope to say, well, okay, I can focus on getting out because I can see light at the end of the tunnel. So that’s one of the things. Tell our audience, going forward outside, is there anything else we need to know other than what you’re saying, as far as your advocacy?
Mary Price: Sure. The one point I want to make that the Sentencing Commission revealed to us is, and you will not be surprised, there is a racial disparity aspect to this history point-counting as well. There’s going to be 11,500 people who would get a lower guidelines stay because of status points. And of those, 43% of them are Black. So it’s a big number. And then if the amendment was made retroactive, a little over 2,000 people would be eligible for immediate release. And then similarly, if that Zero-Point Offender guideline was made retroactive, almost 70% of the people who were sentenced based on those zero points who would get a lower sentence a day are Hispanic. So it never surprises me. The numbers are rather large and it doesn’t entirely surprise me that this is the case, but I hope some small advance for racial justice in the system as well.
Mansa Musa: And I recall looking at a report where they talked about the racial disparity in this mechanism and the fact that it automatically created a situation where Black and Brown-skinned people, and poor people in general, would be heavily impacted by it. Which automatically opened the door for the conversation of, why are you using it, what’s the purpose behind it? But what is it that you want people to do, going forward?
Mary Price: Right. Going forward between now and June 23, that comment period’s going to be open. And we sent out a sample letter that people can send to the Sentencing Commission. You can find that on our website at www.famm.org. But I can also send you a link to publish on your show, and that just explains a little bit about this change and why it’s so important, and asks people to write a letter to the Commission and encourage them to make this change retroactive. So that’s the thing I hope that all of you will be able to do once you’ve finished watching the show. The deadline is June 23.
Mansa Musa: There you have it, The Real News. June 23, we’re asking everyone to review this information and make a determination. If you have a family member that’s locked up in the federal system, it may make a big difference between the information they use to enhance their sentence, versus that information no longer being used. And you might look on to have your loved one home by Christmas, by Thanksgiving, or some of the more memorable opportunities. We ask that you continue to look at these things and evaluate them in the context that they’re being offered. Thank you, Mary, for educating us and educating our audience on the importance of this.
Mary Price: Thank you for having me on, and thanks for the wonderful questions, and I appreciate your participation in this project.
Mansa Musa: And we ask you to continue to support The Real News and Rattling the Bars. Mary Price and FAMM have been around for a long time, but you don’t hear about this individual or these groups on NBC or your major news networks. You only hear about them on The Real News, and you only get the opportunity to hear the impact when they come on and you start rattling the bars about the sentencing structure, the sentencing guidelines, and the impact that’s having on mass incarceration. We are talking about dismantling the prison-industrial complex. Well, it starts with one shovel at a time and here’s a shovel that’s being offered by FAMM. Thank you and continue to support Rattling the Bars.
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