More than 6,000 inmates convicted of drug charges will be released from federal prison at the end of the month in what experts say will be among the largest inmate releases in U.S. history.
But about a third of those inmates aren't going free: 2,000 of the releasees are immigrants who will be immediately moved into deportation proceedings.
The release is thanks to the U.S. Sentencing Commission, a judicial agency which voted last April to reduce sentences for drug crimes by an average of 11 months. The commission decided in November 2014 that they would enact the changes retroactively, allowing inmates to petition courts for sentence reductions. The first wave of 6,000 inmates who have been approved will now be released between Oct. 30 and Nov. 2, although many of them are already in halfway houses or home confinement.
In past years, the commission made similar moves to reduce sentences for crack cocaine, but this release covers all drug charges. Over the next few years, it will mean that more than 40,000 inmates will be eligible for early release.
“We were motivated in part by the overcrowding in the federal prisons,” Rachel Barkow, a commission member and NYU law professor, told the Marshall Project. Congressional oversight reports say that federal prisons are 30% over capacity.
The retroactive resentencing will take effect as criminal justice reform reaches a critical point in U.S. politics. It's separate from President Obama's move to grant clemency to some nonviolent drug offenders, which resulted in 46 commutations this summer. And it's also different from the recent bills proposed in Congress to reduce sentences and mandatory minimums for nonviolent crimes.
In fact, the commission's resentencing decision will probably have a bigger impact than those higher profile actions. "Nothing to date comes close to what this shift is likely to produce over the next decade or so, starting this year," Marc Mauer, the executive director of the Sentencing Project, an advocacy group, told the AP.
A quarter of the inmates who qualify under the sentencing commission's reforms are not U.S. citizens. The 2,000 inmates who will be deported—both undocumented immigrants and legal residents who can be deported for their crimes—will be moved from federal prison to immigration detention centers.
Donna Coltharp, an assistant federal public defender in the western district of Texas, told me that many of her clients eligible for the reductions were caught bringing drugs from Mexico into the U.S. "A lot of them are people who carried something across the border… for what seems to us as a small amount of money," she said. They ended up getting sentences ranging from five to ten years in prison.
"Even the folks who are going home to another country, I think, are happy that they're being released," she said. Immigrants in federal prison are not eligible for some drug programs that U.S. citizen inmates are, which can make their time in prison more difficult.
Some have worried that the people being released are not just nonviolent drug offenders caught in outdated sentencing guidelines, but hardened and dangerous criminals. The AP reported that some of those being released carried automatic weapons and had past robbery or assault convictions. Judges can block an early release if they think an inmate could be a public danger.
Other criminal justice reform advocates wonder why the release is making headlines now. This has been in the works for more than a year, and some say the media attention could be timed by some prosecutors to turn public opinion against criminal justice reform efforts. "It's fodder for the Bill O'Reillys and Heather Mac Donalds," a lawmaker working on the Senate reform bill told the Marshall Project.
Taken into context, it's hardly alarming: Every year, federal prisons release 55,000 inmates who've served their sentences, and state prisons release another 600,000.
Casey Tolan is a National News Reporter for Fusion based in New York City.