Kinder, Gentler: Less Time Inside for Less-Serious Crimes

Post Date: February 20, 2014

(The Economist) — Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences. The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then. But it appears to have given sentencing reform a strong shot in the arm.

In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges. Like mandatory minimums, these guidelines were created to reduce judicial variation and discretion. Since 2005 they have been merely “advisory”, though in practice they often determine how long a guilty defendant spends in prison.

The USSC estimates that its proposed change would reduce sentences by 11 months for around 70% of federal drug-trafficking offenders. Its own study of crack offenders who received reduced sentences under a similar change found they were no likelier to reoffend than those who served full sentences. If approved by Congress, this change would go into effect in November; the USSC reckons that it would reduce the federal prison population by about 6,550 within five years.

Mercy, mercy
Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly. Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced. (That act increased the amount of crack that triggers five- and ten-year mandatory minimums from 5 and 28 grams respectively to 50 and 280 grams, and eliminated the five-year mandatory minimum for possessing five grams of crack.) Third, the bill would give judges more leeway to ignore mandatory minimums in certain cases. Govtrack, a website that tracks bills in Congress, gives it a 57% chance of becoming law. Read more