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Factsheet #147 on Legal Issues

June 24, 2014

Reforming Mandatory Minimum Sentences: The Smarter Sentencing Act, S. 1410

Smart on Crime, Not Soft on Crime

  • Drug dealing is harmful to society and threatens public safety. Drug dealers should be punished.
  • Current harsh mandatory minimum prison sentences for drug offenses have resulted in too many low-level drug offenders taking up valuable space that ought to be occupied by individuals who pose the greatest threat to public safety.
  • States that have rolled back mandatory minimum sentences have continued to see violent and property crime rates drop.
  • Congress should consider making similar reforms to federal mandatory minimum sentences.

Why Is Reform Necessary?

  • Our federal prisons are overpopulated: the federal prison population has increased by 800 percent since the enactment of mandatory minimum sentencing laws for drug offenses in the 1980s. Of the 216,000 inmates in federal prison today, more than half are there for violating drug laws. Federal prisons are 38 percent over capacity and are projected to climb to 44 percent over capacity by 2018.
  • Each prison cell is valuable real estate that ought to be occupied by individuals who pose the most serious threat to public safety, and changes in mandatory minimums would free up prison cells for more serious offenders.
  • Too many relatively low-level drug offenders are locked up for 5, 10, and 20 years when lesser sentences would, in all likelihood, more than satisfy the legitimate penological goals of general deterrence, specific deterrence, and retribution.
  • Continued increase in the number of drug offenders in prisons may lead to a “crowding out” effect in which the high number of incarcerated drug offenders prevents the incarceration of offenders prone to more serious crime, thereby reducing the effectiveness of incarceration in reducing crime.
  • The Bureau of Prisons is 25 percent of the Department of Justice (DOJ) budget and is projected to exceed 28 percent by Fiscal Year 2018, leaving less money for investigators, prosecutors, and victims’ services.

How Mandatory Minimum Sentences for Drug Offenses Work

  • Mandatory minimums are statutorily defined minimum sentences that judges must impose. In drug cases, these penalties can be triggered depending on the type and amount of drug involved.
  • If an offender possesses with intent to distribute 1 gram of LSD or 5 grams of pure methamphetamine, that triggers a mandatory minimum sentence of 5 years for a first offense, 10 years for a second offense, 20 years for a first offense in which death or serious bodily injury resulted, or life for a second offense in which death or serious bodily injury resulted.
  • If the amount is 10 grams of LSD or 50 grams of pure methamphetamine, that triggers a mandatory minimum of 10 years for a first offense, 20 years for a second offense or a first offense in which death or serious bodily injury resulted, or life imprisonment for a third offense or a second offense in which death or serious bodily injury resulted.
  • There are two ways under existing law for an offender to get out from under the mandatory minimum penalty at the time of sentencing: substantial assistance and the “safety valve.”
  • If the offender provides information used to prosecute others, the government may file a substantial assistance motion for sentencing below the mandatory minimum.
  • Under the “safety valve,” an offender may qualify for a sentence below the mandatory minimum if: he was not the ringleader; provides complete and truthful information to the government; does not have more than one criminal history point; and the offense did not result in death or serious bodily injury, or involve use or possession of a dangerous weapon or making a credible threat of violence.

Proposed Reforms in the Smarter Sentencing Act

  • The proposed reform in the Senate would reduce the mandatory minimum sentencing levels described above from 5-10-20 years to 2-5-10 years, unless death or serious bodily injury resulted.
  • The bill would modestly expand the “safety valve” to include two criminal history points for non-violent offenders, which means that drug offenders with two prior convictions for non-violent offenses that resulted in a sentence of 60 days or less, or one conviction that resulted in a sentence between 60 days and one year, could qualify for the “safety valve” if they satisfy the other criteria.
  • It would allow offenders sentenced under the old crack cocaine–powder cocaine regime to petition for a sentence reduction based on the new regime that Congress passed in 2010 in the Fair Sentencing Act.
  • The bill creates new mandatory minimum penalties and enhances existing ones for certain federal crimes, including sexual assault offenses, domestic violence offenses, and offenses related to terrorism or the proliferation of weapons of mass destruction.
  • The bill contains a “good governance” reform requiring the Attorney General to identify all crimes in the U.S. Code, state how many prosecutions have been brought under each of those provisions over the past 15 years, and indicate the mens rea (“guilty mind”) requirement for each of those provisions. Regulatory agencies would be required to do the same with regulations carrying criminal penalties.
  • The bill would require the Attorney General and the regulatory agencies to make these lists available to the public for free on their websites within two years.

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