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Summary: The Smarter Sentencing Act (S. 502/H.R. 920) is a bipartisan bill sponsored by Senators Richard Durbin (D-IL) and Mike Lee (R-UT) in the U.S. Senate and Representatives Raul Labrador (R-ID) and Bobby Scott (D-VA) in the U.S. House of Representatives. 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 nonviolent drug offenders.
If passed, the Smarter Sentencing Act will do four things:
1. Save billions spent on incarcerating nonviolent drug offenders. The bill will not repeal mandatory minimum drug sentences, but reduce them. This will save billions of dollars, reduce dangerous overcrowding in federal prisons, and ensure that the Justice Department can continue to provide full funding for law enforcement, victims’ services, and reentry. The bill will, if passed, reduce certain 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 (in the Senate bill) or 20 years (in the House bill). These provisions will not be retroactive. The bill does not change any mandatory minimum penalties for drug importation offenses or for drug crimes that result in the death or serious bodily injury of others. The bill also does not change any sentences for violent, gun, or sex offenders. The Justice Department estimated last year that the Smarter Sentencing Act would save $24 billion over 20 years and prevent the building of over a dozen new prisons and the hiring of thousands of new correctional officers.
2. Save expensive prison beds for more dangerous offenders. The bill will slightly expand the existing federal “safety valve,” 18 U.S.C. § 3553(f), for drug offenses. This provision will not be 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 nonviolent, 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, click here.
3. Remedy a long-standing racial injustice and strengthen black communities. The bill will permit 8,800 federal prisoners (87% of which are black) who are imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act, a unanimously-passed measure that reduced the racially discriminatory disparity between crack and powder cocaine sentences in 2010. 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. This is the only part of the Smarter Sentencing Act that would be retroactive.
4. Address over-criminalization. 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 (mens rea) required to violate the law. This addresses bipartisan concerns about “over-criminalization,” 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.
Supporters of the Smarter Sentencing Act:
Current Law to be Changed:
Cost Savings of Smarter Sentencing Act:
Potential Impact and $24 Billion Cost Savings (based on DOJ estimate, below)
DOJ’s Cost Savings Estimate for Smarter Sentencing Act: $24 Billion over 20 years
Congressional Budget Office Analysis: $4 Billion savings over 10 years (S. 1410, 113th Congress)
Latest poll results: Pew Research Center: 63% of Americans say that the states’ move away from mandatory minimum sentences for drug crimes is a good thing (p. 8); two-thirds say that treatment, not jail, should be the solution for heroin and cocaine users (p. 1) (April 2014)
Crack Cocaine/Fair Sentencing Act:
Life Sentences in the Federal System (U.S. Sentencing Commission, 2015)
Hearings and Testimony:
Hearing: “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences,” before the U.S. Senate Committee on the Judiciary (Sept. 18, 2013)
Testimony of Brett Tolman, former U.S. Attorney for the District of Utah, before the U.S. Senate Committee on the Judiciary (Sept. 18, 2013)
Testimony of Marc Levin, Policy Director, Right on Crime Initiative of the Texas Public Policy Foundation, before the U.S. Senate Committee on the Judiciary (Sept. 18, 2013)
Statement of Julie Stewart, President, Families Against Mandatory Minimums, submitted to the U.S. Senate Committee on the Judiciary (Sept. 18, 2013)