Sentence Reform Acts: S. 2123 and H.R. 3713
Released: 2015-10-14T00:00:00

Introduction

Within a week of each other, Senator Grassley and Representative Goodlatte, chairmen of the Senate and House Judiciary Committees, introduced parallel sentencing reform bills with bipartisan cosponsors. By and large in identical language, the two would amend existing mandatory minimum sentence provisions found in federal drug and firearms laws, by and large in identical language. The most obvious difference is that the Senate proposal, S. 2123 , the Sentencing Reform and Corrections Act of 2015, features an extensive corrections title, which the House proposal, H.R. 3713 , the Sentencing Reform Act of 2015, lacks.

Mandatory Minimums

Controlled Substances

The Controlled Substances Act and the Controlled Substances Import and Export Act establish a series of mandatory minimum sentences for violations of their prohibitions. Trafficking—that is, importing, exporting, manufacturing, growing, or possessing with the intent to distribute—a very substantial amount of various highly addictive substances, such as more than 10 grams of LSD (§841(b)(1)(A)), is punishable by imprisonment for not less than 10 years or more than life. A subsequent conviction carries a sentence of imprisonment for not less than 20 years or more than life. When substantial but lesser amounts are involved, such as 1 gram of LSD (§841(b)(1)(B)), sentences of imprisonment for not less than 5 years or more than life are called for, and imprisonment for not less than 10 years or more than life in the case of a subsequent conviction.

As noted in Table 1 below, S. 2123 and H.R. 3713 would reduce the mandatory minimum sentences that must be imposed on repeat offenders.

Safety Valve

The so-called safety valve provision of 18 U.S.C. 3553(f) allows a court to sentence qualified defendants below the statutory mandatory minimum in controlled substance trafficking and possession cases. To qualify, a defendant may not have used violence in the course of the offense. He must not have played a managerial role in the offense if it involved group participation. The offense must not have resulted in a death or serious bodily injury. The defendant must make full disclosure of his involvement in the offense, providing the government with all the information and evidence at his disposal. Finally, the defendant must have an almost spotless criminal record, that is, not more than 1 criminal history point.

Criminal history points and categories are a feature of the U.S. Sentencing Commission's Sentencing Guidelines. The Guidelines assign points based on the sentences imposed for prior state and federal convictions. For example, the Guidelines assign 1 point for any past conviction that resulted in a sentence of less than 60 days incarceration; 2 points for any conviction resulting in a sentence of incarceration for at least 60 days; and 3 points for any conviction resulting in a sentence of incarceration of more than a year and a month.

The Sentencing Commission's report on mandatory minimum sentences suggested that Congress consider expanding safety valve eligibility to defendants with 2 or possibly 3 criminal history points. The report indicated that under the Guidelines a defendant's criminal record "can have a disproportionate and excessively severe cumulative sentencing impact on certain drug offenders." The Commission explained that the Guidelines are construed to ensure that the sentence they recommend in a given case calls for a term of imprisonment that is not less than an applicable mandatory minimum. In addition, the drug offenses have escalated mandatory minimums for repeat offenders. Moreover, similarly situated drug offenders may be treated differently, because the states punish simple drug possession differently and prosecutors decide when to press recidivism qualifications differently.

S. 2123 and H.R. 3713 would modify the safety valve in several respects. First, a defendant would be safety valve eligible with 3 or fewer criminal history points and had not been convicted previously of either a drug trafficking offense, a violent offense, or a "3-point offense" (i.e., one for which he was incarcerated for 60 days or more).

Second, the two proposals would permit the court to waive the criminal history disqualification, in cases other than those involving a past serious drug felony or serious violent felony conviction, if it concluded that the defendant's criminal history score overstated the seriousness of his criminal record or the likelihood that he would commit other offenses.

Third, the bills would create additional safety valve. They would allow the sentencing court to treat a statutory 10-year drug trafficking mandatory minimum—the penalty for first-time §841(b)(1)(A) offenses and §960(b)(1) offenses—as though it were a 5-year mandatory minimum. A defendant would be eligible for this mini-safety valve if

he had no prior convictions for a serious drug felony or serious violent felony; he did not use violence in connection with the offense; he was not an organizer or supervisor of others in connection with the offense; he was not an importer, high-level supplier, or manufacturer of the drugs; he did not distribute drugs to or with a child; and he told authorities everything he knew of the offense.

The mini-safety valve would only apply to future convictions.

Firearms

There are two firearms-related offenses that call for the imposition of a mandatory minimum sentence of imprisonment. One, the so-called three strikes provision, also known as the Armed Career Criminal Act (ACCA), imposes a 15-year mandatory minimum sentence on an offender convicted of unlawful possession of a firearm who has three prior convictions for a drug offense or a violent felony. The other, 18 U.S.C. 924(c), imposes one of a series of mandatory terms of imprisonment upon a defendant convicted of the use of a firearm during the course of a drug offense or a crime of violence.

The ACCA limits qualifying state and federal drug offenses to those punishable by imprisonment for more than 10 years. The qualifying federal and state violent felonies are burglary, arson, extortion, the use of explosives, or any other felony which either has the use or threat of physical force as an element. S. 2123 and H.R. 3713 would reduce the mandatory minimum penalty from 15 years to 10 years. They would also make the modification retroactively applicable in the same manner as the proposed mandatory minimum reductions in the case of controlled substances. That is, they would also permit federal courts to reduce the terms of imprisonment of defendants previously sentenced, after considering the defendant's conduct after his initial sentence, "the nature and seriousness of the danger to any person or the community," and the generally applicable sentencing factors of 18 U.S.C. 3553(a). Again, however, H.R. 3713 's retroactivity would only apply to defendants without a prior serious violent felony conviction.

Section 924(c) brings firearm mandatory minimum tack-on status to any federal drug felony and to any other federal felony, which either has the use of physical force or threat of physical force as an element or which by its nature involves a substantial risk of the use of physical force.

While the ACCA calls for a single 15-year mandatory minimum, §924(c) imposes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or of drug trafficking. The mandatory minimums, imposed in addition to the sentence imposed for the underlying crime of violence or drug trafficking, vary depending upon the circumstances:

imprisonment for not less than 5 years, unless one of the higher mandatory minimums below applies; imprisonment for not less than 7 years, if a firearm is brandished; imprisonment for not less than 10 years, if a firearm is discharged; imprisonment for not less than 10 years, if a firearm is a short-barreled rifle or shotgun or is a semi-automatic weapon; imprisonment for not less than 15 years, if the offense involves armor-piercing ammunition; imprisonment for not less than 25 years, if the offender has a prior conviction for violation of §924(c); imprisonment for not less than 30 years, if the firearm is a machine gun or destructive device or is equipped with a silencer; and imprisonment for life, if the offender has a prior conviction for violation of §924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

One of §924(c)'s distinctive features is that its repeat offender provision has been construed to include conviction of an earlier count within the same prosecution. Under this stacking of counts, a defendant convicted of several counts arising out of a single crime spree involving the robbery of several convenience stores, for example, may face a mandatory term of imprisonment of well over 100 years.

The two sentencing reform bills would make clear that a conviction must have become final before it could be counted or purposes of enhancing the mandatory minimum. They would also reduce the repeat offender mandatory minimum from imprisonment for not less than 25 years to not less than 15 years. The proposals, however, would expand the repeat offender mandatory minimum to include recidivists with prior violent state crime convictions. And with one exception, they would both permit courts to apply the changes retroactively to cases that had become final, provided they took to account the defendant's post-conviction conduct, the nature and seriousness of threats to individual or community safety, and the generally applicable sentencing factors. H.R. 3713 differs from S. 2123 in one respect. It would not afford retroactive application to a defendant who has a prior conviction for a serious violent felony.

S. 2123 and H.R. 3713 each have a third firearms amendment that, although not a strict mandatory minimum amendment, would increase the likelihood of imprisonment by operation of implementing sentencing guidelines by simply increasing the maximum sentence authorized for the offense or offenses. The two bills would increase from imprisonment for not more than 10 years to not more than 15 years the sentences for the following firearms offenses:

false statements in connection with the purchase of a firearm or ammunition; sale of a firearm or ammunition to, or possession by, a convicted felon or other disqualified individual; while in the employ of a disqualified individual, receipt or possession of a firearm or ammunition; knowing transportation of stolen firearms or ammunition; knowing sale, possession, or pledge as security of stolen firearms or ammunition; or transfer or possession of a machine gun under certain circumstances.

Fair Sentencing Act

Originally, the Controlled Substances Act made no distinction between powder cocaine and crack cocaine (cocaine base). The 1986 Anti-Drug Abuse Act introduced a 100-1 sentencing ratio between the two, so that trafficking in 50 grams of crack cocaine carried the same penalties as trafficking in 5,000 grams of powder cocaine. The 2010 Fair Sentencing Act (FSA) replaced it with the present 500-28 ratio, so that trafficking in 280 grams of crack cocaine carries the same penalties as 5,000 grams of powder cocaine. The Sentencing Commission subsequently revised the Sentencing Guidelines to reflect the change and made the modification retroactively applicable at the discretion of the sentencing court.

The FSA reductions apply to cocaine offenses committed thereafter. They also apply to offenses committed beforehand when sentencing occurred after the time of enactment. Federal courts have discretion to reduce a sentence imposed under a Sentencing Guideline that was subsequently substantially reduced. The FSA, however, does not apply to sentences imposed prior to its enactment, and it does not apply in sentence reduction hearings triggered by new Sentencing Guidelines. In such proceedings, the courts remain bound by the mandatory minimums in effect prior to enactment of the FSA.

S. 2123 and H.R. 3713 , in roughly the same terms, would change that and would allow a court to reduce a sentence, imposed for an offense committed prior to the FSA, to reflect its provisions, unless the court had already done so or unless the original sentence was imposed consistent with the FSA amendments.

New Mandatory Minimums

H.R. 3713 would create no new mandatory minimum sentencing provisions. S. 2123 , on the other hand, would establish two: one for interstate domestic violence offenses and another for certain violations of the International Emergency Economic Powers Act (IEEPA).

Existing federal law criminalizes interstate domestic violence and interstate stalking, and penalizes them equally. S. 2123 would establish a mandatory minimum sentence of imprisonment for not less than 10 years when death resulted from interstate domestic violence. In addition, it would increase the maximum penalties for interstate domestic violence from imprisonment for not more than 20 years to not more than 25 years when life-threatening or permanent disfigurement resulted and from imprisonment for not more than 10 years to not more than 15 years when a dangerous weapon was used or serious bodily injury resulted. Otherwise, the Senate proposal would leave the penalties for interstate domestic violence and interstate stalking unchanged.

IEEPA authorizes the President to exercise various authorities to "deal with any unusual and extraordinary [overseas threat] ... to the national security, foreign policy or economy of the United States." Presidents have used this authority to issue executive orders banning various unlicensed transactions with various countries, entities, and individuals. IEEPA violations are punishable by imprisonment for not more than 20 years.

S. 2123 would create a separate mandatory minimum sentence of imprisonment for not less than five years for three types of IEEPA violations. One prohibits IEEPA violations that involve providing defense articles or services as defined by the Arms Export Control Act to countries under an arms embargo. Another prohibits IEEPA violations that involve supplying goods or services for the foreign development of weapons of mass destruction. The third prohibits IEEPA violations that furnish certain foreign entities with goods and services that are subject to export restrictions.

Inventory of Federal Crimes

S. 2123 alone would call for an inventory of federal crimes. Section 109 of the bill would direct the Attorney General to prepare and provide the House and Senate Committees on the Judiciary an inventory of federal statutory crimes and of federal regulatory offenses. The compilation of federal statutory crimes would have to identify the penalties, mens rea, and frequency of prosecution of each offense. The compilation of federal regulatory offenses would be organized by enforcing agency and note the penalties and frequency of prosecution for each. The Attorney General and pertinent agency head would also be responsible for the creation of a publicly available online index of such offenses.