REPORT BY THE NEW YORK COUNTY LAWYERS ASSOCIATION ON THE SMARTER SENTENCING ACT

REPORT BY THE NEW YORK COUNTY LAWYERS ASSOCIATION

ON THE SMARTER SENTENCING ACT

This report was approved by the New York County Lawyers Association (NYCLA) Board of Directors at its regular meeting on November 9, 2015.

Introduction

NYCLA was founded in 1908 on the principle that lawyers shared more in common as lawyers than could be outweighed by any division based on gender, race, religion, sexual orientation, or national origins. NYCLA’s goal was in part making justice “more rapid and more exact.” NYCLA remains an open and inclusive bar association representing lawyers in all aspects of the profession.

NYCLA’s Federal Courts Committee promotes the independence of the Federal Courts and sponsors many programs and publications to foster interaction between members of the bar, judges, and court personnel.

NYCLA’s Criminal Justice Section is an open membership committee comprising 150 defense attorneys, prosecutors, judges, and judicial personnel. The attorneys in the Section practice in both state and federal court, and our defense attorneys serve as both retained and assigned counsel. The Section has long been concerned about the impact of federal sentencing schemes on New York residents.

The Committees support the pending Congressional effort to reform the mandatory sentencing laws and guidelines with respect to drug-related offenses. The existing federal mandatory minimum sentences for drug offenses are in need of reform. Indeed, the United States Attorney General’s Office has expressed support for these efforts. Notably, there are alternatives to mandatory, long-term incarceration, which have the potential to reduce recidivism among certain drug offenders and which are now being implemented in the Eastern District of New York.

Overview: Federal Drug Sentencing Law and the SSA

Pertinent Federal Sentencing Law

In 1986, Congress passed the Anti-Drug Abuse Act (the “1986 Act”). The 1986 Act established different tiers of mandatory sentences, dependent on the quantity and type of drug involved. Specifically, the Act created two tiers of mandatory prison terms for first-time drug offenders: a five-year and a 10-year minimum sentence. In addition, the 1986 Act created a severe disparity between sentences for “cocaine base” — a term understood to include “crack” cocaine — and sentences for other forms of cocaine. In particular, the 1986 Act created a 100-to- 1 sentencing ratio for crack versus powder cocaine, creating the tremendous discrepancy, under the law, that one gram of crack cocaine was treated as the equivalent of 100 grams of powder cocaine.

The Fair Sentencing Act of 2010 (the “FSA”) reduced the crack versus powder cocaine sentencing disparity from a ratio of 100:1 to 18:1. Subsequently, the Supreme Court, in Dorsey v United States, 132 S. Ct. 2321 (2012), determined that Congress’s intent was for the FSA sentencing standards, effective August 3, 2010, to apply retroactively to offenders convicted, but not sentenced, before that date.

Importantly, the law, under 18 U.S.C. § 3553(f), currently provides a “safety valve” exception, permitting a court to refrain from imposing a statutory mandatory minimum sentence in certain circumscribed circumstances. Congress, in 1994, implemented the “safety valve” so that sentencing courts would not be forced to give low-level offenders inequitably harsh sentences. The “safety valve” currently applies only to offenders with no “more than 1 criminal history point.”

The Smarter Sentencing Act and Judicial Safety Valve Act

The SSA and Judicial Safety Valve Act would reform these laws in four primary ways.

Reduction of Mandatory Minimum Sentences

The SSA would amend 21 U.S.C. § 841(b)(1) of the Controlled Substances Act by reducing the mandatory minimum sentences for a number of drug trafficking offenses. Specifically, for offenses involving larger quantities of drugs, the mandatory minimum sentence for first-time offenders would be reduced from “10 years or more” to “5 years or more.” Further, the SSA would reduce the minimum term of “not less than 20 years” to “not less than 10 years” for an offender with a prior conviction for a felony drug offense. The mandatory minimum sentence would also be reduced, for persons with two or more felony drug convictions, from a mandatory term of “life imprisonment without release” to “not less than 25 years” in the Senate Bill and “not less than 20 years” in the House Bill.

For offenses involving certain smaller quantities of drugs, the mandatory minimum sentence would be reduced from 5 years to 2 years. Additionally, the mandatory minimum for an offense committed by an offender with a prior felony drug offense would be reduced from not “less than 10 years” to not “less than 5 years.”

The SSA would also amend the “definitions,” in 21 U.S.C. § 802 of the Controlled Substances Act, to incorporate the term “courier,” with a “courier” defined as a “defendant whose role in the offense was limited to transporting or storing drugs or money.”

Concurrently, 21 U.S.C. § 960(b) of the Controlled Substances Import and Export Act would be amended to incorporate provisions addressing a courier, with respect to illegally transporting or storing quantities of drugs, as proscribed in the statute. An individual acting as a courier, with a prior felony drug conviction, would be sentenced to a mandatory minimum of “not less than 5 years” for transporting or storing larger quantities of drugs, and “not less than 2 years” for transporting or storing smaller quantities of drugs. Drug importers, excluding couriers, would still be subject to the harsher mandatory minimum sentences.

Safety Valve Expansion

Section 2 of the SSA would expand the existing “safety valve” exception of 18 U.S.C.

3553(f)(1). Currently, under 18 U.S.C. § 3553(f)(1), a defendant with no “more than 1 criminal history point” can avoid the imposition of a mandatory minimum sentence. The SSA would expand the “safety valve” to apply to individuals with a criminal history that is “not higher than [a] category 2 [criminal history].”

Additionally, the Justice Safety Valve Act would give a court the “authority to impose a sentence below a statutory minimum to prevent an unjust sentence.” In particular, under the proposed law, a court could impose a lesser sentence where imposing the mandatory minimum sentence would be inconsistent with the factors, enumerated in 18 U.S.C. § 3553(a), that judges are required to consider in imposing sentence. Before imposing a reduced sentence, the judge would be required to give notice to the parties and permit an opportunity to respond. The judge would also be required to issue a statement of reasons explaining why a sentence below the statutory minimum is required.

Retroactive Relief under the Fair Sentencing Act of 2010

Section 3 of the SSA would allow offenders who possessed or trafficked in crack cocaine before August 3, 2010 — and who therefore were sentenced under the old 100:1 ratio — to petition for resentencing. The court, in its discretion, would be allowed to resentence the defendant using the newer 18:1 ratio established by the FSA.

Administrative Directives

Section 5 of the SSA would require the Sentencing Commission to review and amend its Guidelines, within 120 days, to ensure consistency with the SSA’s reduction of mandatory minimum sentences for certain drug offenses. The SSA instructs the Sentencing Commission to consider several factors in revising the Guidelines, including the following: public safety concerns posed by serious drug offenders, the need to prevent overcrowding of federal prisons, fiscal implications of sentencing policy, Congressional intent with respect to public safety risks, and the need to reduce and prevent racial disparities in sentencing.

Section 6 of the SSA would require the Attorney General to report on how the cost savings from reduced sentences would be used to reduce overcrowding in federal prisons, increase investment in law enforcement and crime prevention, and reduce recidivism. Section 7 would direct the Attorney General to submit a report listing the number of prosecutions for all statutory criminal offenses in the preceding 15 years. That section would also direct the heads of specified agencies to submit reports about the number of regulatory offenses referred to the Department of Justice for prosecution.

The Recommendation of the Committees

The Committees recommend passage of the SSA and the Justice Safety Valve Act. Importantly, the Acts would serve to: (1) reduce the mandatory minimum incarceration periods for various non-violent drug offenses; (2) expand the “safety valve” under which certain offenders can receive sentences below the statutory minimum; (3) permit federally incarcerated prisoners to seek retroactive relief under the FSA; and (4) direct the Sentencing Commission to amend its guidelines to comply with the new provisions, ensuring consistency and fairness in overall sentencing.

Initially, the SSA would further the goals of fairness and rehabilitation by reducing mandatory minimum sentences imposed on non-violent drug offenders. The United States Department of Justice has declared that “there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders.” The Sentencing Commission, too, has concluded that “certain mandatory minimum provisions apply too broadly, are set too high, or both, to warrant the prescribed minimum penalty for the full range of offenders who could be prosecuted under the particular statute.” By reducing the mandatory minimums applicable to non-violent drug offenses, the SSA would give judges discretion to determine whether particular offenders deserve leniency based on their history, character, and prospects for rehabilitation. Indeed, a common complaint among judges is that, when dealing with non-violent offenders, mandatory minimums deny them the ability to do justice in the individual case.

Similarly, the Sentencing Commission has observed that the mandatory minimums for recidivist, non-violent drug offenders are “sometimes viewed as disproportionate and excessively severe in individual cases and far exceed the more graduated, proportional increases provided by the guidelines for such prior conduct.” Consequently, the Sentencing Commission has begun taking measures to lower mandatory minimum sentences and expand the “safety valve” for low level offenders.

The SSA addresses this problem by reducing the mandatory minimum penalties for various drug offenses, as described above. Notably, the SSA does not eliminate mandatory minimum penalties, and it keeps in place substantial mandatory minimums for offenders with prior felony drug convictions. The Justice Safety Valve Act, however, would enhance the judge’s discretion to avoid a mandatory minimum sentence when such a sentence would be unduly harsh in a particular case. The Committees endorse these reforms, which wisely grant the trial judge expanded authority to impose a sentence below the mandatory minimum, where imposition of the statutory minimum would be unjust and would violate the policies underlying federal sentencing.

Similarly, the SSA appropriately draws a distinction between “couriers,” whose role is limited to transporting drugs or money, and offenders who are more deeply involved in drug trafficking. It is appropriate for mere couriers to be subject to lesser mandatory minimum sentences than higher-level offenders.

In addition, the SSA would mitigate the unfairness caused by the pre-2010 federal policy treating one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The lessening of mandatory minimum sentences would serve to decrease the racial inequity resulting from the sentencing disparity between crack and powder cocaine, as African-Americans are disproportionately impacted by the disparity.

This disparity was based on the belief, in the 1980s, that crack cocaine was significantly more dangerous than powder cocaine. See Kimbrough v. United States, 128 S. Ct. 558, 567 (2007); United States v. Booker, 70 F.3d 488, 493 (7th Cir. 1995). Since 1995, however, the Sentencing Commission has believed that the 100:1 disparity is unwarranted and has issued several reports urging reform. Specifically, the Sentencing Commission has concluded that the harmfulness of crack cocaine was overstated in the 1980s and that minorities have suffered disproportionately from the sentencing disparity.

In 2010, as noted, Congress reduced the ratio to 18:1 — a ratio that has applied to all federal crack cocaine offenses committed since that time. The SSA would apply this reform retroactively to more than 8,800 non-violent felons, 88% of whom are African American, serving sentences that are now recognized to be unduly long. Simply put, this reform would alleviate an unwarranted racial disparity in sentencing for offenses involving cocaine. The FSA was enacted to reduce the racial disparity in sentencing between crack and powder cocaine, and would only be further advanced by permitting defendants to seek retroactive relief.

Further, the SSA would help alleviate prison overcrowding, allowing taxpayer money to be better spent elsewhere. Over the past 30 years, the federal prison population has grown dramatically. In 1980, the Federal Bureau of Prisons reported a prison population of approximately 25,000; in 2013, the federal prison population had increased to more than 219,000 inmates. While there are many reasons for the growth in the federal prison population, increased sentences for drug offenders are a significant factor. Of course, prison overcrowding “puts correctional officers and inmates alike at greater risk of harm and makes recidivism reduction far more difficult.” Moreover, the increased spending on handling the incarcerated prisoners is “on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry and crime prevention.” Hence, the SSA would be a step towards reducing prison overcrowding and prison costs, allowing money to be better spent elsewhere.

Concurrently, the SSA directs the Sentencing Commission to “review and amend” the Sentencing Guidelines in light of the reduced mandatory minimums that will apply under the new law. This reform is important to achieving the goals of the SSA, because, in the past, the Sentencing “Commission generally has established guideline ranges that are slightly above the mandatory minimum penalty for offenders convicted of offenses carrying a mandatory minimum penalty.” Finally, the SSA reasonably requires the United States Attorney General to submit reports to Congress concerning the SSA’s impact, in order to assess any changes that might need to be made to the law going forward.