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Here's What to Expect from the Latest Attempt at Federal Sentencing Reform

Bipartisan bill was amended in April. Who would be affected?

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Prison

When President Barack Obama announced his latest round of commutations he reminded Americans in his statement that Congress is working on bipartisan federal sentencing reforms that would hopefully provide some relief to some who are currently in prison for drug-related crimes.

He's referring to the Sentencing Reform and Corrections Act of 2015, introduced last fall. It's a more modest sentencing reform plan than some had hoped for and it was amended at the end of April with some more changes. To help people understand where S.2123 stands right now, Families Against Mandatory Minimums (FAMM) has a useful explainer of what it actually changes about federal crime sentencing, which parts are retroactive, estimates of who might be helped (when possible), and what is missing.

What's Good:

  • Reduces mandatory life without parole to 25 years for third-strike drug felons who have previous serious drug or violent felonies. The reduction is retroactive except for those who have previous "serious violent felonies." It also reduces from 25 years to 15 years the mandatory minimum for the second strike in these above crimes. Again, the reduction is retroactive except for those with "serious violent felonies."
  • Changes the 25-year mandatory minimum sentence that applies for second or subsequent convictions for having a gun while committing a drug or violent crime to make sure that the previous convictions were finalized and not part of a current indictment. The current application of the law has allowed for the mandatory minimum to be invoked for one single set of crimes (as Jacob Sullum has explained here).
  • Makes the Fair Sentencing Act, which ended the disparity in mandatory minimum sentences between powder cocaine and crack cocaine convictions, retroactive. FAMM predicts this could assist approximately 5,800 crack cocaine offenders in seeking relief, but each case will require review first.
  • Expands opportunities for judges to apply a "safety valve" exception to sentence less than a mandatory minimum in situations where the defendant doesn't have a prior "serious" felony conviction or in a situation where the defendant was not the leader or organizer of a criminal activity, they did not possess a gun, they pleaded guilty, and nobody died or was seriously injured (yes, all of those factors are combined requirements). Similar rules may also be invoked for a new safety valve exception that can reduce 10-year mandatory minimum drug sentences to five-year sentences. These "safety valves" are not retroactive and will not apply to those already sentenced.
  • Allows some prisoners that are currently excluded to earn credits from rehabilitation programs and cash them in toward the end of their sentences to transfer to other types of supervised situations like halfway homes.

What's Bad:

This law that's supposed to be about reducing federal sentences actually adds four new mandatory minimums. Three were already in the version introduced last fall and a fourth was just added in April:

  • A 15- to 25-year new mandatory minimum sentence for federal drug offenses for those who have a prior "serious violent felony" conviction. FAMM notes that this would affect a class of offenders that weren't previously subject to these mandatory minimums but doesn't have an estimate as to how many people might be affected.
  • A new 10-year mandatory minimum sentence for interstate domestic violence convictions that result in death.
  • A new 5-year mandatory minimum sentence for providing weapons or aid to terrorists.
  • The latest addition as part of the current opioid abuse panic: A new mandatory minimum sentence enhancement of up to 5 years for drug crimes that involve fentanyl, a prescription drug used to treat pain. CORRECTION: This isn't a mandatory minimum; it's a sentence enhancement.

What's Missing:

FAMM notes that the bill does nothing to help the 5- to 10-year mandatory minimum sentences that about half of all federal drug offenders are sentenced to each year. It does not give judges any discretion when dealing with defendants who are drug addicts or mentally ill or had gotten involved in drugs or the drug trade due to domestic violence or threats of others. And it does nothing to reform sentences or provide for "safety valves" in cases where a gun was merely present, even if the gun was legally owned and not used in a drug offense.

I'll note that the changes also don't appear to add the mens rea reform some were pushing to require more situations where prosecutors would have to prove criminal intent in order to convict defendants. The Department of Justice really did not like that proposal, and it has been spun by opponents as a way for corporations to get away with breaking the law. (I dissected that argument here.)

Read FAMM's analysis of the changes here. Read more from Reason on the Sentencing Reform and Corrections Act here.