Yesterday the U.S. Sentencing Commission unanimously approved a "modest amendment" that would reduce prison terms for thousands of drug offenders by an average of nearly a year. The amendment, which will take effect on November 1 unless Congress votes to override it, reduces by two the "base offense levels," tied to drug weight, that judges use to calculate sentences. The commission says "approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average." The shorter sentences would "reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact." The commission has not decided yet whether the amendment will apply retroactively, which would allow thousands of current prisoners to be released earlier than expected.
Families Against Mandatory Minimums (FAMM) gives an example of the amendment's impact:
Under the current guidelines, a first-time drug offense involving at least 10 grams of methamphetamine, but not more than 20 grams, is a level 18 offense, which means the recommended sentence range for the first-time offense is 27-33 months. Under the new guidelines adopted today by the Sentencing Commission, the same quantity of methamphetamine will be a level 16 offense, which means the recommended sentence range for a first-time offense will be 21-27 months.
"We commend the Sentencing Commission for taking this important step toward reforming federal drug sentences," says FAMM President Julie Stewart. "This change will save taxpayers money, help to rein in federal prison spending, and bolster the spirits of tens of thousands of federal defendants who are facing impractical and disproportionately long sentences."
The amendment will not affect mandatory minimum sentences prescribed by statute, but it will move the recommended penalty ranges down so that they include the mandatory minimums. Currently the ranges for drug quantities that trigger five- or 10-year sentences are higher than the mandatory minimums so defendants can obtain shorter prison terms by agreeing to plead guilty and cooperate. But as the commission's chairwoman, U.S. District Court Judge Patti B. Saris, explained yesterday, "it is no longer necessary to set the guidelines above mandatory minimum penalties to encourage low-level offenders to cooperate," because "Congress added the 'safety valve,' which provides for sentences below mandatory minimum levels for low-level offenders and gives those offenders substantial incentive to cooperate."
Saris defended the amendment on grounds of efficiency:
Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991. Federal prisons are 32% over capacity, and federal prison spending exceeds $6 billion a year, making up more than a quarter of the budget of the entire Department of Justice and reducing the resources available for federal prosecutors and law enforcement, aid to state and local law enforcement, crime victim services, and crime prevention programs—all of which promote public safety.
Saris did not say anything about justice, perhaps because it is hard to make the case that there is such a thing as a fair prison term for consensual transactions among adults, let alone that 11 months is the difference between just and unjust for a given quantity of an arbitrarily proscribed chemical. By contrast, Attorney General Eric Holder, who supported this amendment, does criticize "draconian" and "unfairly long" drug sentences in terms of justice. Yet Holder's main initiative in this area, which involves urging federal prosecutors not to mention drug weight when charging certain low-level offenders, might help 500 people a year, compared to 1,300 a year affected by the amendment. Then again, Holder's policy could result in substantially bigger sentence reductions in some cases.
In terms of impact, the Smarter Sentencing Act, which the Senate Judiciary Committee approved by a vote of 13 to 5 in January, would blow both of these changes out of the water. That bill, which is supported by the Obama administration and has bipartisan backing in the House as well as the Senate, would shorten the sentences of something like 8,800 people currently serving time for crack offenses by making changes enacted in 2010 retroactive. It also would cut the mandatory minimums for various other drug offenses in half and loosen the criteria for the safety valve.
Several Republicans have taken leading roles in sentencing reform, including Sen. Mike Lee (R-Utah), who co-sponsored the Smarter Sentencing Act with Sen. Dick Durbin (D-Ill.); Sen. Rand Paul (R-Ky.), who together with Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced the even more ambitious Justice Safety Valve Act last year; and Rep. Raul Labrador (R-Idaho), the chief sponsor of the Smarter Sentencing Act in the House. But so far only one Republican on the House Judiciary Committee, Rep. Spencer Bachus (Ala.), is co-sponsoring the Smarter Sentencing Act. The committee's Republicans complain (inaccurately, in my view) that Holder's policy regarding charges against low-level drug offenders is an abuse of executive power. They say addressing draconian prison sentences is Congress's job. Here is their chance to do it.