II 

118TH CONGRESS 

1ST SESSION S. 1152 

To focus limited Federal resources on the most serious offenders. 

IN THE SENATE OF THE UNITED STATES 

MARCH 30, 2023 

Mr. DURBIN (for himself, Mr. LEE, Mr. WHITEHOUSE, Mr. BLUMENTHAL, 

Mr. BOOKER, Ms. WARREN, Mr. SANDERS, Mr. KING, Mr. KAINE, Mr. 

WICKER, and Mr. MARKEY) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To focus limited Federal resources on the most serious 

offenders. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Smarter Sentencing 

5 Act of 2023’’. 

6 SEC. 2. SENTENCING MODIFICATIONS FOR CERTAIN DRUG 

7 OFFENSES. 

8 (a) CONTROLLED SUBSTANCES ACT.—The Con9 trolled Substances Act (21 U.S.C. 801 et seq.) is amend10 ed— 


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1 (1) in section 102 (21 U.S.C. 802)— 

2 (A) by redesignating paragraph (58) as 

3 paragraph (59); 

4 (B) by redesignating the second paragraph 

5 (57) (relating to ‘‘serious drug felony’’) as 

6 paragraph (58); and 

7 (C) by adding at the end the following: 

8 ‘‘(60) The term ‘courier’ means a defendant 

9 whose role in the offense was limited to transporting 

10 or storing drugs or money.’’; and 

11 (2) in section 401(b)(1) (21 U.S.C. 

12 841(b)(1))— 

13 (A) in subparagraph (A), in the flush text 

14 following clause (viii)— 

15 (i) by striking ‘‘10 years or more’’ 

16 and inserting ‘‘5 years or more’’; and 

17 (ii) by striking ‘‘15 years’’ and insert18 ing ‘‘10 years’’; and 

19 (B) in subparagraph (B), in the flush text 

20 following clause (viii)— 

21 (i) by striking ‘‘5 years’’ and inserting 

22 ‘‘2 years’’; and 

23 (ii) by striking ‘‘not be less than 10 

24 years’’ and inserting ‘‘not be less than 5 

25 years’’. 


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1 (b) CONTROLLED SUBSTANCES IMPORT AND EXPORT

2 ACT.—Section 1010(b) of the Controlled Substances Im3 port and Export Act (21 U.S.C. 960(b)) is amended— 

4 (1) in paragraph (1), in the flush text following 

5 subparagraph (H)— 

6 (A) by inserting ‘‘, other than a person 

7 who is a courier,’’ after ‘‘such violation’’; 

8 (B) by striking ‘‘person commits’’ and in9 serting ‘‘person, other than a courier, com10 mits’’; and 

11 (C) by inserting ‘‘If a person who is a cou12 rier commits such a violation, the person shall 

13 be sentenced to a term of imprisonment of not 

14 less than 5 years and not more than life. If a 

15 person who is a courier commits such a viola16 tion after a prior conviction for a serious drug 

17 felony or serious violent felony has become 

18 final, the person shall be sentenced to a term 

19 of imprisonment of not less than 10 years and 

20 not more than life.’’ before ‘‘Notwithstanding 

21 section 3583’’; and 

22 (2) in paragraph (2), in the flush text following 

23 subparagraph (H)— 

24 (A) by inserting ‘‘, other than a person 

25 who is a courier,’’ after ‘‘such violation’’; 


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1 (B) by striking ‘‘person commits’’ and in2 serting ‘‘person, other than a courier, com3 mits’’; and 

4 (C) by inserting ‘‘If a person who is a cou5 rier commits such a violation, the person shall 

6 be sentenced to a term of imprisonment of not 

7 less than 2 years and not more than life. If a 

8 person who is a courier commits such a viola9 tion after a prior conviction for a serious drug 

10 felony or serious violent felony has become 

11 final, the person shall be sentenced to a term 

12 of imprisonment of not less than 5 years and 

13 not more than life.’’ before ‘‘Notwithstanding 

14 section 3583’’. 

15 (c) APPLICABILITY TO PENDING AND PAST CASES.— 

16 (1) DEFINITION.—In this subsection, the term 

17 ‘‘covered offense’’ means a violation of a Federal 

18 criminal statute, the statutory penalties for which 

19 were modified by this section. 

20 (2) PENDING CASES.—This section, and the 

21 amendments made by this section, shall apply to any 

22 sentence imposed after the date of enactment of this 

23 Act, regardless of when the offense was committed. 

24 (3) PAST CASES.—In the case of a defendant 

25 who, before the date of enactment of this Act, was 


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1 convicted or sentenced for a covered offense, the sen2 tencing court may, on motion of the defendant, the 

3 Bureau of Prisons, the attorney for the Government, 

4 or on its own motion, impose a reduced sentence 

5 after considering the factors set forth in section 

6 3553(a) of title 18, United States Code. 

7 SEC. 3. DIRECTIVE TO THE SENTENCING COMMISSION. 

8 (a) DIRECTIVE TO SENTENCING COMMISSION.—Pur9 suant to its authority under section 994(p) of title 28, 

10 United States Code, and in accordance with this section, 

11 the United States Sentencing Commission shall review and 

12 amend, if appropriate, its guidelines and its policy state13 ments applicable to persons convicted of an offense under 

14 section 401 of the Controlled Substances Act (21 U.S.C. 

15 841) or section 1010 of the Controlled Substances Import 

16 and Export Act (21 U.S.C. 960) to ensure that the guide17 lines and policy statements are consistent with the amend18 ments made by section 2 of this Act. 

19 (b) CONSIDERATIONS.—In carrying out this section, 

20 the United States Sentencing Commission shall con21 sider— 

22 (1) the mandate of the United States Sen23 tencing Commission, under section 994(g) of title 

24 28, United States Code, to formulate the sentencing 

25 guidelines in such a way as to ‘‘minimize the likeliVerDate Sep 11 2014 04:09 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1152.IS S1152

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1 hood that the Federal prison population will exceed 

2 the capacity of the Federal prisons’’; 

3 (2) the findings and conclusions of the United 

4 States Sentencing Commission in its October 2011 

5 report to Congress entitled, Mandatory Minimum 

6 Penalties in the Federal Criminal Justice System; 

7 (3) the fiscal implications of any amendments 

8 or revisions to the sentencing guidelines or policy 

9 statements made by the United States Sentencing 

10 Commission; 

11 (4) the relevant public safety concerns involved 

12 in the considerations before the United States Sen13 tencing Commission; 

14 (5) the intent of Congress that penalties for 

15 violent, repeat, and serious drug traffickers who 

16 present public safety risks remain appropriately se17 vere; and 

18 (6) the need to reduce and prevent racial dis19 parities in Federal sentencing. 

20 (c) EMERGENCY AUTHORITY.—The United States 

21 Sentencing Commission shall— 

22 (1) promulgate the guidelines, policy state23 ments, or amendments provided for in this Act as 

24 soon as practicable, and in any event not later than 

25 120 days after the date of enactment of this Act, in 


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1 accordance with the procedure set forth in section 

2 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 

3 note), as though the authority under that Act had 

4 not expired; and 

5 (2) pursuant to the emergency authority pro6 vided under paragraph (1), make such conforming 

7 amendments to the Federal sentencing guidelines as 

8 the Commission determines necessary to achieve 

9 consistency with other guideline provisions and ap10 plicable law. 

11 SEC. 4. REPORT BY ATTORNEY GENERAL. 

12 Not later than 6 months after the date of enactment 

13 of this Act, the Attorney General shall submit to the Com14 mittee on the Judiciary of the Senate and the Committee 

15 on the Judiciary of the House of Representatives a report 

16 outlining how the reduced expenditures on Federal correc17 tions and the cost savings resulting from this Act will be 

18 used to help reduce overcrowding in the Federal Bureau 

19 of Prisons, help increase proper investment in law enforce20 ment and crime prevention, and help reduce criminal re21 cidivism, thereby increasing the effectiveness of Federal 

22 criminal justice spending. 

23 SEC. 5. REPORT ON FEDERAL CRIMINAL OFFENSES. 

24 (a) DEFINITIONS.—In this section— 


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1 (1) the term ‘‘criminal regulatory offense’’ 

2 means a Federal regulation that is enforceable by a 

3 criminal penalty; and 

4 (2) the term ‘‘criminal statutory offense’’ 

5 means a criminal offense under a Federal statute. 

6 (b) REPORT ON CRIMINAL STATUTORY OFFENSES.— 

7 Not later than 1 year after the date of enactment of this 

8 Act, the Attorney General shall submit to the Committee 

9 on the Judiciary of the Senate and the Committee on the 

10 Judiciary of the House of Representatives a report, which 

11 shall include— 

12 (1) a list of all criminal statutory offenses, in13 cluding a list of the elements for each criminal stat14 utory offense; and 

15 (2) for each criminal statutory offense listed 

16 under paragraph (1)— 

17 (A) the potential criminal penalty for the 

18 criminal statutory offense; 

19 (B) the number of prosecutions for the 

20 criminal statutory offense brought by the De21 partment of Justice each year for the 15-year 

22 period preceding the date of enactment of this 

23 Act; and 

24 (C) the mens rea requirement for the 

25 criminal statutory offense. 


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1 (c) REPORT ON CRIMINAL REGULATORY OF2 FENSES.— 

3 (1) REPORTS.—Not later than 1 year after the 

4 date of enactment of this Act, the head of each Fed5 eral agency described in paragraph (2) shall submit 

6 to the Committee on the Judiciary of the Senate and 

7 the Committee on the Judiciary of the House of 

8 Representatives a report, which shall include— 

9 (A) a list of all criminal regulatory of10 fenses enforceable by the agency; and 

11 (B) for each criminal regulatory offense 

12 listed under subparagraph (A)— 

13 (i) the potential criminal penalty for a 

14 violation of the criminal regulatory offense; 

15 (ii) the number of violations of the 

16 criminal regulatory offense referred to the 

17 Department of Justice for prosecution in 

18 each of the years during the 15-year period 

19 preceding the date of enactment of this 

20 Act; and 

21 (iii) the mens rea requirement for the 

22 criminal regulatory offense. 

23 (2) AGENCIES DESCRIBED.—The Federal agen24 cies described in this paragraph are the Department 

25 of Agriculture, the Department of Commerce, the 


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1 Department of Education, the Department of En2 ergy, the Department of Health and Human Serv3 ices, the Department of Homeland Security, the De4 partment of Housing and Urban Development, the 

5 Department of the Interior, the Department of 

6 Labor, the Department of Transportation, the De7 partment of the Treasury, the Commodity Futures 

8 Trading Commission, the Consumer Product Safety 

9 Commission, the Equal Employment Opportunity 

10 Commission, the Export-Import Bank of the United 

11 States, the Farm Credit Administration, the Federal 

12 Communications Commission, the Federal Deposit 

13 Insurance Corporation, the Federal Election Com14 mission, the Federal Labor Relations Authority, the 

15 Federal Maritime Commission, the Federal Mine 

16 Safety and Health Review Commission, the Federal 

17 Trade Commission, the National Labor Relations 

18 Board, the National Transportation Safety Board, 

19 the Nuclear Regulatory Commission, the Occupa20 tional Safety and Health Review Commission, the 

21 Office of Congressional Workplace Rights, the Postal 

22 Regulatory Commission, the Securities and Ex23 change Commission, the Securities Investor Protec24 tion Corporation, the Environmental Protection 

25 Agency, the Small Business Administration, the 


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1 Federal Housing Finance Agency, and the Office of 

2 Government Ethics. 

3 (d) INDEX.—Not later than 2 years after the date 

4 of enactment of this Act— 

5 (1) the Attorney General shall establish a pub6 licly accessible index of each criminal statutory of7 fense listed in the report required under subsection 

8 (b) and make the index available and freely acces9 sible on the website of the Department of Justice; 

10 and 

11 (2) the head of each agency described in sub12 section (c)(2) shall establish a publicly accessible 

13 index of each criminal regulatory offense listed in 

14 the report required under subsection (c)(1) and 

15 make the index available and freely accessible on the 

16 website of the agency. 

17 (e) RULE OF CONSTRUCTION.—Nothing in this sec18 tion shall be construed to require or authorize appropria19 tions. 

Æ 


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