Congress could release thousands of prisoners early | Rattling the Bars

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 United States Sentence 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, retroactive, meaning incarcerated people whose sentence would be lower today may be eligible for a sentencing 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, 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. Okay, as we should be. First tell our audience a little about yourself and what the organization that you're working for so we can get them to see just how you wind up in this space. 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 states. 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 actual 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 so we are very proud of

the work that we do with all of our members. 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 we have the sentencing commission, the Federal Sentencing Commission is responsible for developing the sentencing guidelines for anyone under the federal jurisdiction. Am I correct? That's correct. So the sentencing commission writes the

guidelines that govern sentences below, between and above the mandatory minimum sentences. That's correct. Okay. And they are mandated by Congress to do, and they have and it has the force of law, whatever recommendations they make has the force of law. Am I correct? To some extent. Originally... Explain the difference. Yes, of course. Originally, so 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 sort of find a better place to rest a sentence if the imposed sentence is either, excuse me, 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. 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. 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 six

boxes this way. Those boxes that go across the top are criminal history points. How many points, and there's a system within the guidelines that says, "You've been or arrested fairly recently or you had three prior convictions," or there's a variety of lots 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. 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 not to have any impact on one's, or 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 able to re-offend. Right, right, right. The other proposal that the commission has is to reduce the sentences for people who have zero criminal history points. Right, right. 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. And what happens is, from what you explained to our audience is because you have a arbitrary system where in terms of like you were saying, "Okay, 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 putting in the category of having a prior or the effect of having a prior, that's automatically going to increase my sentence regardless of the," and I want to get into this part of the conversation, "Regardless of what I did, 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 going say, "It ain't what you here for now is what you did in the past." Am I correct? Well, it's a combination. Okay, explain. 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 sort of the nature of the crime of conviction, whether they were victims, was there a gun, was there a large amount of loss?

If there's a fraud. All kinds of things will 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 sort of current offense and then the history. If you have

criminal history, that's going to move you over and that's going to increase your points as well, or your guideline sentence rather as well. Right. And I think that's what I'm trying to get, I always understand is that on the front end, and I agree, I understand what you're saying, that they 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 I'm going to get factored in that. But then if I have a history, criminal history, regardless of what I did here, it's going to be impacted by my criminal history. Exactly correct. And therein lies the problem. With these changes a person in that situation, in the situation I just described, I got a property crime, no victim, nobody

was harmed. It might be a series of mitigators. That's right. Under this new system, how would that play out? 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're on probation, you've been released, 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 being, convicted of something else or of serving or committing this offense while serving that probation is going to add points and they're basically 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 that only people who receive seven or more criminal history points anyway 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. So in terms of applications, say for example,

I come in and my offense, so this is for education of the public, so they understand why y'all are asking for support in this regard 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

terms of what getting people to understand this, so I come in, I get locked up, I'm on five years probation, I got two years left on my probation and I get an offense. And the offense I give is, like I said, it's a property crime, no victims, no weapon. All right, how would that play out in terms of these changes? Mary, first take it, if I

don't get a change versus if I do get a change. If you follow me on that? I do, but it's impossible to do that calculation. Okay. 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

seven points and if you don't have those seven points, then that being on status is only getting you the one. Right. But it's hard to do the calculation of... Okay. Okay. I understand, I understand. And I'm really, the reason why I'm trying to get the simplification of it because I'm trying to get... 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. You serve in time, you serve your sentence and serving your sentence or being given a sentence, give you hope on having a future in terms of getting out versus not having no 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 no control over and it's going to create you serving, him or her serving a lot more time if these things didn't exist. So that's really what I was trying to get to understand. But walk us through what

it is y'all trying... I just want to add one thing, I misspoke a little bit. You don't get any status points unless you have seven criminal history points and you've committed the incident offense while under supervision. I mean I think the sentencing commission found that unfair. And I think that 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. 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 it is FAMM trying to get done. Explain to our audience what FAMMs trying to get done. Well, let me just go back and explain a little something. So these two changes both to status points and also first offender, 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 November 1st. 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 criminal history changes that we've been talking about. But here's the other thing, while we're waiting, 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 in other words, 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 to the sentencing court and ask the sentencing court to apply those changes retroactively. Right. And I think you mentioned some numbers earlier about just 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's doing this and then it wants to do this, rather. 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, going to be, 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 so what they want to hear from the public is thumbs up or thumbs down and why. So we sent a note around which I think you saw saying we hope that you'll comment on

this. And we sent it both to our members, loved ones on the outside, but also through our core link system, to our federally incarcerated members on the inside. Okay. And why, why, why? So you say if they change it, what would be the answer? What should be out people's answer? Why should they change it? Why should they change it? Why should they make it retroactive? They've

already decided to make it... Because, well, in my view, I think that if you determine that a system is unjust and you're going to end that system, so for example, all this 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 just common sense and a little bit also 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 it's only 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, an 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." At least I think in regards to the advocacy of the family's advocacy, it gives the prison population mainly those sentenced under the federal prison guidelines, it give them some hope because a lot of them their sentences was 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 give them hope. And when you got a system where it's overcrowded as it is, its resources are not being afforded 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 do, I

can focus on getting out because I can see light at the end of the tunnel." So I think that's one of the things. Tell our audience going forward outside, is there anything else you we need to know going forward other than what you're saying as far as your advocacy? Sure. The one point I want to make that the sentencing commission reveal 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 day 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 2000 people would be eligible for immediate release. And then similarly,

if that zero point offender guideline was made retroactive, that would affect 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. I mean the numbers are rather large and it doesn't entirely surprise me that this is the case, but it is also I hope some small advance for racial

justice in the system as well. And I recall looking at a report where they talked about that the racial disparity in this mechanism and how it is and the fact that it automatically created a situation where black and brown skinned people and basically poor people in general would be heavily impacted upon by it, which automatically opened the door for the conversation of why are you using

it, what's the purpose behind it? But going forward you say, what is it that you want us to do going forward? Well, what we'd love for you to... People to do going forward. Right, going forward between now and June 23rd, 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 at

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 of 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. There you have it. The deadline is June 23rd. There you have it, the real news. June 23rd, 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 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. Thank you for having me on, and thanks for the wonderful questions and I appreciate your

participation in this project. And we ask you to continue to support the real news and Rattling Bars. Mary Price and FAMM has 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 really hear the impact that when you

start rattling the bars, when they come on and rattle 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.