04/02/2014 05:06 pm ET Updated Dec 06, 2017

Federal Drug Sentencing Is About to Get Smarter: How the War on Drugs Is Changing


Federal Sentencing for Drug Crime is about to get smarter; or, at least that what some people think. In what could be a significant change in the Federal Sentencing laws for drug crimes, Senator Richard Durbin sponsored a bill -- "The Smarter Sentencing Act of 2013" or SSA -- that was introduced to the Senate in August of 2013. There is no word on if and when the bill will become law, (it has passed the Senate Judiciary Committee and heads now to the Senate Floor) but President Obama -- through Attorney General Holder -- has made it clear that he advocates of change to the sentencing laws and would likely sign the bill. To some, like the NAACP and FAMM -- Families against Mandatory Minimums -- this bill is a welcomed change. To others, like some seasoned U.S. Attorneys across the country this is bad for communities and will directly lead to a drug crime surge. Either way, the SSA is a clear message that the America's strategy in the War on Drugs is about to change its tactics.

The SSA, if passed, will lead to three important developments. First, the retroactivity of the Fair Sentencing Act (FSA) of 2010, which increased the amounts of crack cocaine that trigger five and 10 year mandatory minimums. The SSA would make the FSA retroactive by allowing federal crack cocaine offenders who committed their offenses before August 3, 2010 to make a motion to the Court requesting the application of the FSA to their case.

Secondly, the SSA would modify and expand the criteria for the "safety valve" exception to mandatory minimums by allowing the "safety valve" benefit to apply to those defendants who fall into Criminal History Category I and II -- rather than just Category I.

Thirdly, and perhaps the most critical and also the most controversial aspect of the bill, reduce the five, 10 and 20 year mandatory minimum sentences to two, five and 10 year terms respectively. This portion of the bill, which essentially slashes all mandatory minimum sentences in half, clearly addresses the passionate debate that has occurred in connection with mandatory minimum sentences since their inception in the 1980s. According to organizations like the NAACP and FAMM, the U.S. has seen an astronomical increase in the number of federal inmates over the last 30 years due to mandatory minimum sentences. On purely racial terms, the NAACP cites that more than 60 percent of the people in prison are now racial and ethnic minorities, and one out of every 10 males in federal prison are African-American. In addition, to the proponents of the SSA, the reduction of mandatory minimums also attacks the reality that federal judges are hamstrung due to a "one size fits all" approach to sentencing. Further positives of reducing mandatory minimum sentences include reducing prison overcrowding, saving taxpayer money and minimizing the risk of destroying family units which in turn destroy communities.

Of course, not everyone supports the SSA. In fact, proponents know that given a conservative majority in the House, the passage of the SSA is heading for an uphill battle. Some federal prosecutors are of the opinion that while incarceration rates may decline, drug crime will rise because drug dealers will not feel the pressure to cooperate. The argument is that when faced with an option of a 20-year mandatory minimum compared with cooperating against kingpins or cartels and receiving a real break in sentencing, cooperation is often chosen. Without a ominous mandatory minimum term hanging over a defendant's head, the compulsion to cooperate and cause other arrests and prosecutions diminishes.

In the meantime, while the bill makes its way through the legislative process and we criminal defense attorneys await the outcome of this debate and another development is on the horizon. The U.S. Sentencing Commission has recommended the two-point decrease to all Base Offense Levels (BOL) in the Drug Quantity Table under §2D1.1 that correspond to drug type and weight. As an example, if a defendant is charged with possession of 800 grams of heroin under the present guidelines, his BOL is 30. If this new proposal is adopted, that BOL will drop to 28. This is not insignificant. The difference in a defendant's ultimate sentence could drop over a year in some cases. Assuming no Congressional action to the contrary, this change could become part of the Sentencing Guidelines by November. Importantly, Attorney General Holder has gone on record supporting this decrease, and saying that prosecutors should not object even now, to a two-point reduction in the BOL.

Whether you believe that these new proposed changes to federal sentencing laws are "smart" tactics or akin to a retreat or a surrender, the laws are changing and the strategy in our War on Drugs is about to change with it.

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