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Blue Christmas for Criminal Justice Reform – Update for December 27, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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SENTENCE REFORM DIES WITH 117TH CONGRESS

Sentencing reform is dead for another two years.

bluechristmas221227Of all the criminal justice reform bills in Congress – the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), the COVID-19 Safer Detention Act (S.312), the Prohibiting Punishment of Acquitted Conduct Act (S.601), the EQUAL Act (S.79) and the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – exactly none made it past the Senate during the two-year Congress that ends in a week. Zero. Zip. Bupkis.
With both the House nor Senate closed for a Christmas-Passover-Kwanzaa-New Year’s vacation until next Tuesday, the 117th Congress is done. It’s the legislative equivalent to taking a knee in the final minute of a football game. The clock’s running out.

runoutclock221227It was clear last summer that the First Step Implementation Act, the Smarter Sentencing Act, the COVID-19 Safer Detention Act (and the Prohibiting Punishment of Acquitted Conduct Act were going nowhere. But some marijuana and cocaine reform – even though it was not quite what was in the MORE Act and EQUAL Act that passed the House – looked likely as late as last week. However, despite bipartisan support for both bills, Senate Republicans shot them down, but with plenty of help from Senate Democrats and the Biden Administration.

As for marijuana, the Senate’s failure to act comes as a repudiation of Biden’s efforts for pot reform. In October, the president pardoned thousands of people convicted of simple marijuana possession (although no one pardoned was in federal prison) and said his administration would review how the drug is categorized.

The MORE Act would have allowed cannabis companies to open bank accounts and would have retroactively permitted changes in pot-based sentences. But efforts were severely hobbled last fall when Senate Majority Charles Schumer (D-NY), Sen Cory Booker (D-NJ) and Sen Ron Wyden (D-OR) introduced their own version of weed reform, the Cannabis Administration and Opportunity Act (S.4591).

Either MORE or CAOA would have been good for prisoners, but Democratic leadership’s push of an alternative bill diluted the groundswell of support needed to get MORE passed. By last week, the only hope was for banking reform – nothing for federal prisoners – but even that was exempted from last week’s giant end-of-year spending bill, the last chance it had for passage.

congressgradecard221227If anything, the EQUAL Act’s failure was a bigger disappointment. Aimed at reducing the disparity in sentencing for crack versus powder cocaine offenses by making crack and powder sentences the same, it would have benefitted thousands of prisoners with retroactive relief. EQUAL passed the House with bipartisan support and had what seemed to be a veto-proof majority of 50 Democrat supporters and 11 Republican Senate co-sponsors.

Then, Sen Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee and introduced his SMART Cocaine Sentencing Act (S. 4116), which watered down EQUAL and put retroactivity in the hands of the Dept of Justice.

Still, EQUAL had a chance until Sen Tom Cotton (R–AR) single-handedly stopped the Senate from considering the bill last Wednesday. EQUAL, like the marijuana-friendly SAFE Banking Act was proposed as an addition to the catch-all spending package, an effort that Cotton frustrated.

Sen. Booker then sought unanimous consent to release the stand-alone version of the EQUAL Act from the Senate Judiciary Committee. Sen. Cotton, a hardline prohibitionist described by Beforeitsnews.com as someone “who has never met a drug penalty he thought was too severe,” objected. Sen. Booker’s “hail Mary” fell short.

Still, it appeared up until a week ago that some crack cocaine relief would be jammed into the giant end-of-year spending bill. Reuters reported a week ago that Senate negotiators had reached a potential compromise.

timing221227But then, Attorney General Merrick Garland picked the middle of the negotiations to issue a memo directing federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in two ways. If they decide that a mandatory minimum should be charged, they should “charge the pertinent statutory quantities that apply to powder cocaine offenses.” And at sentencing, “prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.”

Grassley was enraged, blasting the Garland memo as demanding that “prosecutors ignore the text and spirit of federal statutes [and] undermining legislative efforts to address this sentencing disparity.” And just like that, when the text of the 4,000-page, $1.7 trillion spending bill was released, the watered-down EQUAL Act was nowhere to be found.

“It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk,” Holly Harris, president and executive director of the Justice Action Network, said. “The American people deserve better.”

FAMM vice president Molly Gill wants to see the EQUAL Act reintroduced next session. The politics are hard to predict: Democrats have one more seat in the Senate, while Republicans will take narrow control of the House.

The fact that a large number of House Republicans joined Democrats in passing the EQUAL Act last year is not reassuring: the trick will be getting a Republican speaker – who controls what comes up for a vote – put the bill in front of the chamber.

Any bill now pending in the House or Senate that has not passed will disappear on Jan 3, when the new 2-year Congress – the 118th – convenes. And we will start all over again, but with a much unfriendlier House of Representatives.

New Republic: Three Incredibly Popular Things That Congress Chose to Leave Out of the Spending Bill (December 20, 2022)

Reason, Congress Yet Again Fails To Pass Crack Cocaine Sentencing Reforms (December 20, 2022)

Marijuana Moment, Schumer’s “last ditch” cannabis banking push (December 19, 2022)

Reason, Merrick Garland’s New Charging Policy Aims To Ameliorate the Damage His Boss Did As a Drug Warrior (December 19, 2022)

Beforeitsnews.com, The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction (December 22, 2022)

Filter, The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity (December 21, 2022)

– Thomas L. Root

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EQUAL Act But Unequal Reform? – Update for April 21, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act, (H.R.3617)

– Thomas L. Root

It’s Halftime for the 117th Congress, and Criminal Justice Reform Has Been Held Scoreless – Update for January 3, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WELL, 2021 WAS KIND OF DISAPPOINTING…

NYDTypwrtr220103We all had high hopes for criminal justice reform when President Biden took the White House, and the Democrats won control of the House and Senate. The year 2021 was widely seen as the end of a dark era and the beginning of a brighter one. As Reason magazine said last week, it wasn’t just the close of just any year. It was the end of 2020.

Over the last 12 months, politicians h some steps to advance justice reform. But as is the case with so many New Year’s expectations, quite a bit also stayed the same.

Since Biden’s inauguration, criminal justice reform has taken a back seat to his more prominent initiatives, last March’s American Rescue Plan, the Infrastructure Investment and Jobs Act in November, and the now seemingly-dead Build Back Better social-spending blowout.

Biden did issue an executive order canceling contracts with private prison operators, a nice change for the 14,000 people in those joints. And his Dept, of Justice finally reinterpreted the CARES Act to let people on home confinement stay there. He has promised clemency reform. But the real work is to be done in Congress, w has yet to progress.

If you stayed awake in high school, you recall that every Congress lasts two years. Any bill introduced in the 117th Congress – which began in January 2021 – will stick around until the 117th expires a year from today. That means that the reform bills now in front of Congress still have a chance.

On New Year’s Day, the San Francisco Chronicle called for a targeted bill to abolish mandatory minimums, said, “The good news is that criminal justice reform can be accomplished with relatively limited expenditures — compared to, for example, Build Back Better’s sweeping expansion of the social safety net. That gives it a fighting chance of passing in today’s barely Democrat-controlled Congress.”

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A couple of bills before Congress would reduce but not eliminate mandatory minimums: the EQUAL Act (lowers minimums for crack to equal those of powder) has passed the House but hasn’t yet cleared committee in the Senate; the MORE Act (decriminalizes marijuana retroactively) has been approved by a House committee but has not been passed by the House or Senate; the First Step Implementation Act (makes First Step mandatory minimum reductions retroactive) and the Smarter Sentencing Act (reduces mandatory minimum penalties for certain nonviolent drug offenses only) have not even cleared committee in either the House or Senate.

While the House also passed the MORE Act to decriminalize marijuana, the measure has been dead on arrival in the Senate, where Senate Majority Leader Chuck Schumer (D-New York) announced plans to draft his own version of the bill. The Schumer bill has been released as a working draft but has yet to be formally introduced.

In the House, Republican Rep. Nancy Mace (South Carolina) introduced the first GOP-sponsored bill in Congress to legalize marijuana, hinting that there may be openness to a bipartisan solution in the future. If the Democrats fail to take advantage of the political opportunity in front of them, Forbes said last week, they risk ceding this issue to the Republicans if and when they take back control of Congress, possibly as soon as next year.

When the SAFE Banking Act, a marijuana bill, passed the House last year, it got 106 Republican votes, demonstrating that the GOP can deliver votes on cannabis legislation. But the MORE Act that passed the House in the last Congress – the one with criminal retroactivity – received only five Republican votes. The current MORE Act has collected only one Republican co-sponsor.

cotton181219The problem is that most bills spend months in committee with no movement, or they pass in the House only to the Senate before dying out. And with mid-terms putting all of the House and a third of Senate up for re-election in November and crime rates shooting up, getting legislators on board for criminal justice reform is going to be more challenging.

And then there are demagogues like Sen. Tom Cotton (R-Arkansas). Last week, he wrote in Real Clear Politics:

Unfortunately, soft-on-crime policies have been, at times, a bipartisan problem. In 2018, Republicans passed the pro-criminal First Step Act. That deeply flawed legislation reduced sentences for crack dealers and granted early release to some child predators, carjackers, gang members, and bank robbers. Ironically, this jailbreak bill even provided early release for those who helped prisoners break out of jail. This misguided push by Republicans to win applause from liberals strengthened the hand of radicals like George Soros. In a political environment where the parties compete for who can be more pro-criminal, the Democrats will always win.

People like Cotton make even common-sense federal criminal justice reform a hard sell.

Reason, In 2021, Qualified Immunity Reform Died a Slow, Painful Death (December 30, 2021)

Forbes, The Least Eventful Year for Marijuana (December 31, 2021)

San Francisco Chronicle, Biden’s agenda is stuck. It doesn’t have to be that way with criminal justice reform (January 1, 2022)

S. 79: EQUAL Act

H.R. 3617, MORE Act

S. 1013: Smarter Sentencing Act of 2021

S. 1014: First Step Implementation Act of 2021

Brookings Institution, The numbers for drug reform in Congress don’t add up (December 22, 2021)

Real Clear Politics, Recall, Remove & Replace Every Last Soros Prosecutor (December 20, 2021)

– Thomas L. Root

There Ain’t No Easter Bunny… – Update for September 16, 2021

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HOW’S THAT 65% BILL DOING?

After answering yet another email about the mythical 65% bill – legislation that purportedly would reduce everyone’s sentence to 65% of what the court imposed – I thought I would lead with this sad news:

There is no Santa Claus. There is no Easter Bunny. And there is no 65% Bill.

easterbunny210916While Congresswoman Sheila Jackson Lee (D-Texas) has introduced such a bill in a number of previous sessions of Congress since 2001, there is no such bill in the hopper now. When she did introduce it, the bill never even got a committee hearing. If it did exist, it wouldn’t get one now. A 65% bill would stand a chance of passage approaching zero.

In sum, the so-called 65% bill is like a pink unicorn: fun to imagine, but not real. And neither is the rumor that everyone will get a sentence cut because of COVID.

So what is real? First, a letter sent last week by 25 state attorneys general to House and Senate leadership, urging an expansion of Section 404 of the First Step Act to include people sentenced under 21 USC § 841(b)(1)(C). You recall that in Terry v. United States last June, the Supreme Court held that Section 404 did not qualify pre-2010 crack sentences for sentence reduction. The state attorneys general want legislation to change that.

Second, a lot of criticism of the President over the CARES Act. Writing in the Washington Examiner last week, Matt Schlapp – chairman of the American Conservative Union – argued that Congress should act to ensure that CARES Act home confinees stay at home after the pandemic ends. He wrote, “As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.”

chart210624Meanwhile, a piece in the Deseret News made the conservative argument for the EQUAL Act, which would retroactively make crack cocaine sentencing levels equal to those of powder cocaine: The EQUAL Act already passed through the U.S. House Judiciary Committee with a vote of 36-5, garnering support from both sides of the aisle. It faces another battle to pass through the rest of Congress, and Utah’s delegation should be there to vote in support. The debate over crack versus powder cocaine has no basis in science, in rationality, or in ethics. Because of this, many individuals have been needlessly imprisoned for far too long in comparison to the crime committed. Congress should pass the EQUAL Act to ensure these penalties are equalized and fairness is restored to criminal sentencing.”C

So when will Congress get to any criminal justice reform measures? No one knows. Only a few bills have been voted out of committee in the Senate – the COVID-19 Safer Detention Act, the First Step Implementation Act of 2021, and the Prohibiting Punishment of Acquitted Conduct Act. In the House, the EQUAL Act is the only criminal justice bill voted out of committee. No floor votes have been scheduled for any bills. With infrastructure and the $3.5 trillion spending bills taking center stage in Congress, it is unlikely that criminal justice reform will get any attention until next year.

Letter to Sens Charles Schumer and Mitch McConnell (September 2, 2021)

Washington Examiner, Biden promised to address over-incarceration. He’s blowing his opportunity (September 8, 2021)

Deseret News, Conservatives should support sentencing reform for crack cocaine (September 8, 2021)

– Thomas L. Root

Drug and 924(c) Sentence Reduction, Retroactivity Bills Introduced – Update for March 29, 2021

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TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE

The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.

smart210328Sens. Richard Durbin (D-Illinois), Mike Lee (R-Utah), and 11 cosponsors introduced S.1013, the Smarter Sentencing Act of 2021, seeking once again to reform some drug mandatory minimums. At the same time, Durbin and Sen. Charles Grassley (R-Iowa) introduced S.1014, the First Step Implementation Act of 2021.

The Smarter Sentencing Act, an updated version of the Smarter Sentencing Act of 2019 (which went nowhere), continues the mandatory minimum adjustments to 21 USC § 841(b), the sentencing section of the drug trafficking statute begun by the First Step Act. First Step adjusted mandatory life in § 841(b)(1)(A) to 25 years, and mandatory 20 years in the same subsection to 15 years. The Smarter Sentencing Act proposes similar adjustments:

(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.

(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.

Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).

Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.

mandatory170612Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Meanwhile, S.1014 – the First Step Implementation Act – is equally significant. It would extend retroactivity to anyone sentenced for drug or stacked § 924(c) offenses sentenced prior to the 2018 First Step Act and let judges waive criminal history limitations that keep defendants from getting the 18 USC § 3553 safety value.

Additionally, the bill corrects a weird anomaly in the First Step Act that redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.

The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.

usscmembers210328The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.

As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.

Committee on the Judiciary, Durbin, Lee Introduce Smarter Sentencing Act (March 26, 2021)

Congressional Record, Statements On Introduced Bills And Joint Resolutions (S.1013 and S.1014) (March 25, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “Smarter Sentencing Act” to reduce federal drug mandatory minimums (March 26, 2021)

– Thomas L. Root

Smarter Sentencing Act Back In The Senate Hopper – Update for November 19, 2019

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SMARTER SENTENCING ACT RE-INTRODUCED IN SENATE
Sen. Mike Lee (R-Utah)
Sen. Mike Lee (R-Utah)

The Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week by Sen. Richard Durbin (D-Illinois) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee. As of the date of this report, we have no bill number to associate with the legislation.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

A lot of what had been contained in prior versions of the SSA, a bill which has been introduced in every Congress since 2013, was included in the First Step Act. What the current version contains is unclear, because the text of the proposed bill has not yet been released. However, Durbin’s office said “the central remaining sentencing reform in the Lee-Durbin legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.”

In the last iteration of the bill, S.1933 (115th Congress, 2017-18), the bill proposed an expanded “safety valve” under 18 USC § 3553(f) to allow a court to impose a sentence below the statutory mandatory minimum for an otherwise eligible drug offender who has three or fewer criminal history points. This change was incorporated into the First Step Act. Also, last year’s SSA reduced mandatory minimum sentences for drug offenses specified in 21 USC § 841(b)(1)(A) and (b)(1)(B):

•  from 10 years to 5 years for a first-time high-level offense (e.g., one kilogram or more of heroin),

•  from 20 years to 10 years for a high-level offense after one prior felony drug offense,

•  from life to 25 years for a high-level offense after two or more prior felony drug offenses,

•  from 5 years to 2 years for a first-time low-level offense (e.g., 100 to 999 grams of heroin), and

•  from 10 years to 5 years for a low-level offense after one prior felony drug offense.

The First Step Act incorporated the life-to-25 year and the 20-to-15 year reductions, but not the remainders.

Additionally, last year’s SSA made existing mandatory minimums inapplicable to a defendant who functions a courier; and establishes new, shorter mandatory minimum prison terms for a courier.

The current version of the Smarter Sentencing Act “gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses,” Durbin said in a press release.

BILL-DOA191120Lee said, “The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

The bill is cosponsored by ten Democratic senators, including three presidential contenders, making the likelihood it will pass in the Senate virtually zero.

The Justice Roundtable, Durbin, Lee Reintroduce Smarter Sentencing Act (Nov. 16)

– Thomas L. Root

Smarter Sentencing Act: Just Like Before, But With More Sponsors – Update for October 17, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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SMARTER SENTENCING ACT REDUX

deja171017We were a bit befuddled when Sen. Mike Lee (R-Utah) announced by press release on October 5, 2017, that he and Sen. Richard Durbin (D-Illinois) had “reintroduced the Smarter Sentencing Act of 2017.” It was not clear whether this was a complete retread of the Smarter Sentencing Act of 2015, S. 502, that died without a vote last December, or whether it was new and improved (or just different).

The confusion was compounded because we were unable to locate a draft of the Smarter Sentencing Act of 2017 anywhere over the next 10 days. We called Sen. Lee’s office last week for a copy of the measure, and received our copy yesterday.

Yes, indeedy, the 2017 version of the bill is identical to old S.502, except for a boatload more sponsors (21 from both sides of the aisle). Highlights of the measure include

• expanding the “safety valve” contained in 18 USC 3553(f) – which permits court to relieve low-level drug offenders with relatively clean records to avoid mandatory minimum sentences under some circumstances – to include people with slightly more criminal history.

Currently, a single misdemeanor in one’s background can disqualify the defendant from “safety valve” consideration. Under the proposed change, a couple of felonies will be too much, but more young defendants facing their first serious criminal charge would be sentenced under a scheme that let the judge weigh individual factors rather than applying an inflexible and harsh minimum sentence.

• making the Fair Sentencing Act of 2010, which reduced disparity between crack cocaine and powder cocaine from 100:1 to 18:1, retroactive.

cracksentence171017In the wake of basketball star Len Bias’ death in 1988, Congress passed the draconian Anti Drug Abuse Act, which equated one gram of crack cocaine to 100 grams of cocaine powder. As a result, drug sentences – which are driven by the amount of drug involved in the crime – soared. The defendants in crack cases were overwhelmingly black.

After years of urging by the Sentencing Commission and studies showing that Congress’ rationale for the ADA – that crack was more addictive and crack offenses more violent – was bunkum, Congress passed the Fair Sentencing Act in 2010. Unfortunately, to convince recalcitrant senators to support it, the retroactivity portions of the law were stripped out. Thus, a crack defendant sentenced August 3, 2009, was hammered with the 100:1 ratio, while a defendant sentenced August 3, 2010, was treated more in line with what a cocaine powder defendant would face.

The SSA would make the FSA retroactive, permitting defendants sentenced harshly prior to the adoption of the law eligible for resentencing, at their judges’ discretion, to a more reasonable term.

• cutting mandatory minimums in the drug trafficking laws.

Currently, the Byzantine sentencing regime in 21 USC 841(b) provides differing levels of mandatory minimum sentences for various quantities of different drugs, various number of prior drug felonies, and whether death or serious injury resulted from the drug dealing.

hammer160509Under the SSA, a 10-year mandatory minimum sentence would become 5 years, 20 years would become 10 years, five years would become two years. Right now, a defendant with two prior drug felonies (no matter how old) caught with five kilos of cocaine gets a mandatory life term: no ifs, ands or buts. Sure, the public’s thirst for vengeance is slaked by such toughness. But somehow, when the public sees the same defendant, bent and gray, shuffling across the prison yard a quarter century later, the tough sentence seems pretty wasteful.

The SSA would turn the mandatory life sentence into a mandatory minimum of 25 years.

• cutting mandatory minimums in 21 USC 960 for drug mules carrying drugs into the country courier in half.

mule171017Your poor, dumb peasant from El Cocador humping marijuana across the border or clueless young woman flying in to JFK from East Slobovia with heroin in the liner of her suitcase… These are the couriers, the lowest of the low-level defendant being paid maybe two shekels for hauling someone else’s big score. Under 21 USC 960, the drug importation criminal statute, they get hammered with the same mandatory sentences as Mr. Big, the kingpin staying safely offshore.

The SSA would cut the mandatory minimums applicable to couriers by half.

The bill does not explicitly make any change it proposes retroactive other than the extension of the FSA, but a fair reading of Section 5 of the SSA suggests that the Sentencing Commission should do so according to its retroactivity procedures.

Some of the Smarter Sentencing Act provisions echo those of the Sentence Reform and Corrections Act of 2017, introduced two days earlier. We anticipate that the provisions of the two bills will be blended into a single package by the Senate Judiciary Committee.

S.1933, Smarter Sentencing Act of 2017 (introduced Oct. 5, 2017)

– Thomas L. Root

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