Read FAMM’s Position on S. 1917

Bill Status: The bill was introduced on October 4, 2017, and passed by a vote of 16-5 by the U.S. Senate Judiciary Committee on February 15, 2018. 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.

Who it Helps: People sentenced in federal (not state) courts only.

Summary: The Sentencing Reform and Corrections Act of 2017 (S. 1917) is a bipartisan bill introduced in the U.S. Senate on October 4, 2017, by Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Senators Richard Durbin (D-IL), Mike Lee (R-UT), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), Patrick Leahy (D-VT), Jeff Flake (R-AZ), Dianne Feinstein (D-CA), Roy Blunt (R-MO), Cory Booker (D-NJ), and Tim Scott (R-SC).

If passed into law, the bill would, among other things, reduce several federal (not state) mandatory minimum drug and gun sentences and make those reductions retroactive for some federal prisoners; make the Fair Sentencing Act of 2010 retroactive; expand the “safety valve” exception for federal drug mandatory minimum sentences; and allow some federal prisoners to spend more time in less restrictive forms of Bureau of Prisons custody if they complete rehabilitative programs and productive activities in prison.

If passed, S. 1917 would make the following reforms to federal sentencing and prison laws:

Drug offenses and the drug safety valve

• Reduces the mandatory minimum life without parole sentence to a mandatory minimum 25-year sentence for a third drug offense under 21 U.S.C. sections 841, 851 (retroactive, except for those with a prior “serious violent felony” conviction);
• Reduces the mandatory minimum 20-year sentence to a mandatory minimum 15-year sentence for a second drug offense under 21 U.S.C. sections 841, 851, and 960(b) (retroactive, except for those with a prior “serious violent felony” conviction);
• More narrowly defines which prior drug offenses can trigger longer mandatory minimum drug sentences under 21 U.S.C. sections 841, 851, and 960(b);
• Applies the 15-year and 25-year mandatory minimum drug sentences for repeat drug offenders to a new group of people who previously would not have received them, those who have broadly-defined “serious violent felony” prior convictions;
• Expands the drug “safety valve” exception at 18 U.S.C. s. 3553(f) so that nonviolent drug offenders can receive sentences below the mandatory minimum term (not retroactive) if:
  • as calculated under the federal sentencing guidelines, they had 4 or fewer criminal history points (not including 1-point prior convictions), and did not have a prior 2-point violent offense conviction or 3-point offense conviction, OR the court determines that the person’s criminal history score substantially over-represents the seriousness of the defendant’s criminal record or the likelihood that he will commit more crimes, and the defendant does not have a prior conviction for a “serious drug felony” or “serious violent felony”; AND
  • the defendant fulfills all other parts of the safety valve (no death or serious bodily injury resulted; no use or possession of a gun; person pled guilty; and person was not a leader, organizer, manager, or supervisor of the offense conduct).
• Creates an additional safety valve exception (not retroactive) for drug offenders facing 10-year mandatory minimum sentences so that the person can receive the 5-year mandatory minimum prison term instead if they:
  • do not have a prior conviction for a “serious drug felony” or a “serious violent felony”; and
  • were not a leader, organizer, manager, or supervisor of the offense conduct; and
  • did not possess or use a gun in the offense; and
  • pled guilty; and
  • did not act as an importer or exporter, high-level distributor or supplier, wholesaler, or manufacturer, unless they played a minor or minimal role, as defined under the sentencing guidelines; and
  • did not sell drugs to or with a person under age 18; and
  • the offense did not result in serious bodily injury or death.

Retroactivity of Fair Sentencing Act crack sentencing reform

• Makes the Fair Sentencing Act (FSA) of 2010 retroactive, allowing 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.

Gun sentences under 18 U.S.C. section 924(c)

• Fixes “stacking”: The bill clarifies that the 25-year mandatory minimum sentence for a second or subsequent offense of possessing guns in the course of drug trafficking offenses or crimes of violence under 18 U.S.C. section 924(c) only applies when the prior 924(c) conviction is already final prior to the commission of the new 924(c) offense (retroactive only for those who possessed a gun in the course of a drug trafficking offense and do not have a prior “serious violent felony” conviction).

Earned time credits for completing rehabilitative programs

• Requires the Bureau of Prisons to create a risk assessment tool to assess and classify each prisoner’s level of risk of recidivism as low, medium, or high, and reassess prisoners’ risk levels periodically (reassessments occur more often as the prisoner gets closer to release).
• Allows some categories of federal prisoners to earn more time in a halfway house, on home confinement, or on community supervision if they complete rehabilitative programs or productive activities (e.g., prison jobs), as follows:
  • 5 days credit for each 30 days of programming completed, if the prisoner is medium or high risk
  • 10 days credit for each 30 days of programming completed, if the prisoner is low risk.
• Permits only low- and medium-risk prisoners to “cash in” their earned time credits for more time on another form of confinement.
  • Medium-risk prisoners can only spend their time credits in halfway houses or on home confinement.
  • Only low-risk prisoners may be placed on community supervision, and only for a portion of the time credits they have earned.
  • In other words, all prisoners who cash in time credits must spend significant portions of their time credits on home confinement and/or in halfway houses.
• Does not authorize any new funding — including for prison programs and jobs, prison staff or computers, or more halfway houses.
• Bans many prisoners from earning time credits, including people
  • Serving a sentence for a second or subsequent federal offense;
  • With more than 13 criminal history points, as calculated under the U.S. Sentencing Guidelines;
  • Convicted of federal terrorism offenses;
  • Convicted of a federal crime of violence;
  • Convicted of a federal sex offense;
  • Convicted of continuing criminal enterprise (21 U.S.C. section 848)
  • Convicted of a federal fraud offense for which the person is serving more than 15 years;
  • Convicted of a federal child exploitation offense; or
  • Convicted of a federal offense for bribery, graft, and conflicts of interest; election and political activity crimes; identity theft and fraud; honest services fraud; obstruction of justice; racketeering; and sexual exploitation or abuse of children.
• Allows prisoners who cannot earn time credits to earn other incentives for program and job completion, including more minutes for phone calls or more visits from family and friends.

Residential Drug Abuse Program (RDAP)

• Gives the Bureau of Prisons 3 years to expand the Residential Drug Abuse Program (RDAP) so that all prisoners who are eligible can enter the program in time to receive the full one-year sentence reduction if they successfully complete the program. Currently, the program is limited and in such high demand that prisoners cannot begin the program in time to earn the full sentence reduction — prisoners who complete the program now only actually receive a 10-month sentence reduction, not a full year.

Elderly release

• Allows the Bureau of Prisons or a prisoner to file a request for early release with the court if the prisoner is elderly or elderly and seriously ill, so long as the prisoner is at least 60 years old, has served at least 2/3 of their sentence, and fulfills other criteria.

New mandatory minimum sentences

• Creates new mandatory minimum sentences of 10 years for interstate domestic violence resulting in a death and five years for providing certain weapons or aid to terrorists; and
• Creates a new, mandatory sentencing enhancement to drug offenses under 21 U.S.C. sections 841 and 960: if the drugs involved include an analogue or any detectable amount of the drug fentanyl or are represented as being heroin, courts are required to add up to an additional 5 years in prison to a person’s sentence for the underlying drug offense.

If passed, S. 1917 would NOT:

• Give prisoners an additional 7 days of good time credit each year;
• Reduce or eliminate the mandatory minimum 5- and 10-year prison terms received by approximately half of all federal drug offenders sentenced annually;
• Give judges discretion to give sentences other than the mandatory minimum prison term when a person is addicted, mentally ill, suffering from combat-related trauma, or involved in a drug offense because of domestic abuse or threats of violence from others;
• Reform conspiracy and “relevant conduct” rules that allow low-level offenders to be given mandatory minimum sentences for drugs used, sold, or manufactured by codefendants;
• Remove the bar on safety valve relief in any case in which a gun was merely present, even if the gun was legally owned and not used in the offense, or was possessed by a codefendant;
• Reform consecutive 5-year sentences imposed under 18 U.S.C. § 924(c) for drug offenders who possess handguns, even if the guns are legally owned and not used in the offense; or
• Reform other mandatory minimum gun possession sentences, even in cases where the guns are legally owned and not used in an offense.

Resources

FAMM’s Letter to the Senate Judiciary Committee on S. 1917 (Feb. 12, 2018)