The so called “Smarter Sentencing Act of 2013” was voted through the Senate Judiciary Committee on 1/30/14. You can read the text of the bill here. If it becomes law, the act will make some important changes to Federal Drug Trafficking sentencing by:
- Reducing mandatory minimum drug sentences
- Expanding safety valve eligibility
- Promoting sentencing guideline reductions
- Allowing some inmates to apply for resentencing
Reduce Federal Drug Trafficking Minimums by 50%
In federal drug trafficking cases, the mandatory minimums can become staggeringly horrific. This bill would cut some of the most common mandatory minimum sentences in half. The mandatory minimums are part of the federal drug distribution statute found at 21 U.S. Code §841.
Basic Mandatory Minimum Quantities 841(b)(1)(B)
The following drug amounts trigger the basic set of mandatory minimums:
- 100 grams or more of heroin;
- 500 grams or more of cocaine
- 28 grams or more of crack cocaine
- 10 grams or more of phencyclidine (PCP)
- 1 gram or more of lysergic acid diethylamide (LSD)
- 100 kilograms or more or marijuana or 1,000 plants regardless of weight; or
- 5 grams or more of methamphetamine
The mandatory sentences currently are:
- 5 years for any violation
- 10 years If the person has 1 prior felony drug conviction
- 20 years if death or serious injury results from use of the drug
The Smarter Sentencing Act of 2013 would:
- Reduce the 5 year minimum to 2 years
- Reduce the 10 year minimum for 1 prior to 5 years
- Leave the 20 year minimum for death or serious injury
Larger Quantities Get Longer Minimums 841(b)(1)(A)
These amounts trigger longer minimum sentences:
- 1 kilogram or more of heroin;
- 5 kilograms or more of cocaine
- 280 grams or more of crack cocaine
- 100 grams or more of phencyclidine (PCP)
- 10 grams or more of lysergic acid diethylamide (LSD)
- 1000 kilograms or more or marijuana or 1,000 plants regardless of weight; or
- 50 grams or more of methamphetamine
The mandatory sentences are:
- 10 years for any violation
- 20 years if death or serious injury results from use of the drug
- 20 years If the person has 1 prior felony drug conviction
- Life if the person has 2 prior felony drug convictions
The Smarter Sentencing Act of 2013 would:
- Reduce the 10 year minimum to 5 years
- Reduce the 20 year minimum for 1 prior to 10 years
- Leave the 20 year minimum for death or serious injury
- Leave the mandatory life sentence for defendants with 2 prior drug felonies.
Expand Safety Valve Eligibility
The language of the so called federal safety valve, found at 18 U.S.C § 3553(f)(1) allows the judge to sentence below the mandatory minimum but only if:
- The defendant does not have more than 1 criminal history point (one misdemeanor with a sentence of less than 60 days in jail),
- The defendant did not use violence or threats of violence or possess a firearm or other dangerous weapon in connection with the offense;
- The offense did not result in death or serious bodily injury to any person;
- The defendant was not an organizer, leader, manager, or supervisor of others in the offense, and
- The defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.
Under the current law, people with anything more than a single misdemeanor on their record will not qualify for safety valve treatment. The Smarter Sentencing Act would change the first of the safety valve criterial to allow defendants with a criminal history category of 2 or less to qualify. That means they can have up to 3 criminal history points and still be safety valve eligible. Three points is the equivalent of three minor misdemeanors or one felony conviction.
Encourage Reduced Guideline Sentencing Ranges
The sentencing commission publishes a set of guidelines which give a proposed sentence for every offense. These are advisory, but must be used by judges in deciding any federal sentence. The guideline range is driven by the offense level, a higher level gets a longer sentence, and in drug cases, the offense level is related to the quantity of drugs.
The smarter sentencing act would direct the sentencing commission to consider adjusting the sentencing guideline ranges for drug offenses covered under this bill. I read this to mean that the commission should consider adjusting the drug quantity tables so that the sentencing ranges based on drug quantities lineup with the changes to the mandatory minimums.
For instance, right now, trafficking 280 grams of crack cocaine gets you a mandatory 10 years. If you run the guidelines, 280 grams gets you an offense level of 32 which starts at a 121 month sentence. If the law passes, it would make sense that the offense level should be reduced for 280 grams so that the guideline range is close to the 5 year mandatory minimum.
Is the Smarter Sentencing Act of 2013 Retroactive?
The FSA or Fair Sentencing Act of 2010 increased the drug amounts needed to trigger mandatory minimum sentences for Crack Cocaine trafficking. 5 grams used to be enough to trigger the 841(b)(1)(B) 5 year minimums and 50 grams used to get you at least 10 years under 841(b)(1)(A). The FSA changed those amounts to 28 and 280 grams.
The Smarter Sentencing Act would clarify that inmates can file motions for resentencing for crack cocaine offenses sentenced before the FSA amounts became law. Those who already got a reduction or who applied and were rejected can’t try again. If the bill passes, those defendants still eligible for resentencing could stand to get a huge reduction.
Other than crack cocaine offenses sentenced prior to 2010, the Smarter Sentencing Act does not explicitly make the mandatory minimum reductions retroactive. If the law passes, those sentenced to mandatory minimums for other drugs, or for crack cocaine at the FSA’s quantities, don’t have an automatic path to sentence reduction. Even if the law passes, these defendants might be stuck serving double the time for their crime.
Bill to Make Minimums Non-Mandatory Still Stuck
Another important bill called the Justice Safety Valve Act of 2013 would simply allow judges to sentence below the mandatory minimum in almost any case. While this is a great idea, it’s also very unlikely to get anywhere. That bill has been stuck in committee since March of 2013 and, was again held over at the 1/30/14 meeting.
Image by Drugs and Money via flickr. Creative commons.
