Status: The Smarter Sentencing Act (S. 1933) was introduced on October 5, 2017, in the U.S. Senate. THE BILL IS NOT A LAW. To become a law, the bill must be approved by the Judiciary committees, passed by both the U.S. Senate and the U.S. House of Representatives, and signed into law by the President. Each year, many bills are introduced, but few become law. We do not know if or when this bill will become law.
FAMM’s Position: FAMM supports the Smarter Sentencing Act.
Summary: The Smarter Sentencing Act (S. 1933) is a bipartisan bill sponsored by Senators Richard Durbin (D-IL) and Mike Lee (R-UT). The bill does not repeal any federal mandatory minimum sentences, but instead reduces prison costs and populations by creating fairer, less costly minimum terms for low-level federal drug offenders.
If passed, the Smarter Sentencing Act would do five things:
1. Reduce mandatory minimum sentences for federal drug offenses. The bill reduces the mandatory minimum sentences for federal (not state) drug offenses in 21 U.S.C. section 841(b). The bill will, if passed, reduce the 20-year, 10-year, and 5-year mandatory minimum drug sentences to 10, 5, and 2 years, respectively. The bill also reduces the mandatory minimum life without parole sentence for a third drug offense to a minimum term of 25 years. (not retroactive)
2. Focus lengthy mandatory minimums on serious drug importers. The bill creates new, shorter mandatory minimum sentences for federal (not state) drug importation offenses in 21 U.S.C. section 960(b). The shorter mandatory minimums will apply if the person is a “courier” — in other words, the person played a limited role that involved only carrying or transporting drugs. The bill will, if passed, require 10-, 5-, and 2-year mandatory minimum sentences for couriers, rather than the 20-, 10-, and 5-year terms that these low-level offenders currently face. (not retroactive) The purpose of this reform is to focus lengthier mandatory minimum sentences on people who play more serious and involved roles in importing drugs.
3. Expand the federal drug “safety valve.” The bill will slightly expand the existing federal “safety valve,” 18 U.S.C. section 3553(f), for drug offenses. (not retroactive) The current drug safety valve applies only to federal drug offenders who have no more than 1 criminal history point, as calculated under the U.S. Sentencing Guidelines. If passed, the bill will allow drug offenders who have 3 or fewer criminal history points under the guidelines to qualify for application of the safety valve. This ensures that very old, minor, or misdemeanor convictions for which people served no prison or jail time will not disqualify low-level offenders from a fairer sentence below the mandatory minimum term. This saves expensive prison beds for more dangerous offenders. The bill will not change the way that criminal history points are currently added under the sentencing guidelines. Those guidelines carefully take into account all of an offender’s prior criminal convictions, giving additional points for factors such as their recency and seriousness, whether the offender was on probation or parole at the time of the crime, and the length and type of sentence imposed for the prior crime. To learn more about how criminal history is calculated under federal guidelines, click here.
4. Make the Fair Sentencing Act’s crack sentencing reforms retroactive. The bill will make the Fair Sentencing Act (FSA) of 2010 retroactive, allowing federal (not state) crack cocaine offenders sentenced before August 3, 2010, to seek sentences in line with the FSA’s reforms to the 100-to-one disparity between crack and powder cocaine mandatory minimum sentences. Sentence reductions will not be automatic, and courts can deny reductions to those who are a danger to the public. Courts have ably handled similar requests from even larger numbers of people in the past. The pre-2010 crack laws were unfair and racially discriminatory. The fairness of a person’s sentence should not depend on the date they went to court. To learn more about the Fair Sentencing Act, click here.
5. Address overcriminalization. The bill will require the Justice Department and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations, their criminal penalties, and the intent standard (mens rea) required to violate the law. This addresses bipartisan concerns about “overcriminalization,” the fear that too many federal laws and regulations carry criminal penalties and insufficient intent requirements, sending innocent and well-meaning people to jail for unknowingly or unintentionally breaking the law.
Current Law to be Changed:
Cost Savings of Smarter Sentencing Act:
Potential Impact and $24 Billion Cost Savings (based on DOJ estimate, below)
Congressional Budget Office Analysis: $4 Billion savings over 10 years (S. 1410, 113th Congress)
Crack Cocaine/Fair Sentencing Act:
Life Sentences in the Federal System (U.S. Sentencing Commission, 2015)