Sentencing Reform: Comparison of Selected Proposals
Released: 2015-10-26T00:00:00

Introduction

Within a week of each other, Senator Grassley and Representative Goodlatte, respective 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. The differences between S. 2123 and H.R. 3713 , occasioned by the manager's amendment adopted before the Senate Judiciary Committee passed S. 2123 , are noted in the prefatory remarks for each chart, and in the remarks relating to the inventory of federal crimes. The subjects of their proposals appear in earlier proposals including (1) H.R. 2944 , which Representatives Sensenbrenner and Scott, the chairman and ranking minority Member of the House Judiciary Committee's crime subcommittee, respectively, introduced for themselves and others, and (2) S. 502 / H.R. 920 , introduced by Senator Lee and Representative Labrador with additional bipartisan cosponsors. Their common components notwithstanding, the bills have some varying features.

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, or manufacturing, growing, 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. 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. Penalties for both sets of offenses increase if the crime results in a death or if the defendant has a prior conviction for a drug felony.

The proposed amendments are noted and compared in Table 1 . S. 502 / H.R. 920 would reduce the mandatory minimum for the high volume §841(b)(1)(A) and §960(b)(1) offenses to imprisonment for not less than 5 years from not less than 10 years, and the mandatory minimums for the medium volume §841(b)(1)(B) and §960(b)(1) offenses to not less than 2 years from not less than 5 years.

H.R. 2944 would eliminate the mandatory minimum for the high volume §841(b)(1)(A) and §960(b)(1) offenses, except when the defendant was the organizer or leader of a 5 member or more drug enterprise. It would eliminate as well the mandatory minimum for the medium volume §841(b)(1)(B) and §960(b)(2) offenses, except when the defendant was the organizer, leader, manager, or supervisor of a 5 or more member drug enterprise. Moreover, the recidivist enhancement would only come into play when the prior conviction for an offense carrying a maximum penalty of imprisonment for 10 years or more; resulting in a sentence of imprisonment for 13 months or more; and from which the defendant had been released within 10 years of the commission of the subsequent drug offense. H.R. 2944 would allow the court to treat each of its amendments, here and throughout the course of the bill, as grounds for reduced sentencing, on the motion of the court, the defendant, the prosecutor, or the Bureau of Prisons.

S. 2123 / H.R. 3713 would create a mini-safety valve to reduce the mandatory minimum for the high volume §841(b)(1)(A) and §960(b)(1) offenses to imprisonment for not less than 5 years, unless the offender had used violence in the commission of the offense; had acted as a supervisor or leader of a drug enterprise; sold to minors; failed to fully reveal all the information or evidence at his disposal relating to the offense or related offenses; and had no prior serious drug or violent felony convictions.

S. 2123 / H.R. 3713 would both expand and contract drug recidivist mandatory minimums under the high volume and medium §§841(b)(1)(A), 841(b)(1)(B), 960(b)(1), and 960(b)(2) offenses. Under existing law, any prior drug felony conviction triggers the enhanced recidivist mandatory minimum. Under S. 2123 / H.R. 3713 , only drug convictions carrying a maximum penalty of 10 years or more and resulting in a sentence of a year or more would trigger the increased recidivist mandatory minimums. On the other hand, convictions for kidnapping, burglary, arson or other serious violent crimes would also serve as a basis for the recidivist mandatory minimums.

The bills would allow the courts, on their own motion or that of the defendant or the Bureau of Prisons, to resentence defendants, convicted prior to S. 2123 / H.R. 3713 's enactment, as though the bills' reduced recidivist mandatory minimums were in place at the time of prior sentencing. In doing so, the courts would be compelled to consider: the nature and seriousness of the risks to an individual or the community; the defendant's conduct following his initial sentencing; and the statutory sentencing factors which they must ordinarily weigh before imposing punishment.

S. 2123 , but not H.R. 3713 , would make it clear that resentencing proceedings would be subject to the victims' rights provisions of 18 U.S.C. 3771, and that an inquiry into facts and circumstances associated with the initial sentencing would be a prerequisite to consideration of a resentencing motion. Section 3771 assures victims of the rights "to reasonable, accurate, and timely notice of any public court proceeding, involving the crime ..." and "to the right to be reasonably heard at any public proceeding in the district court involving ... sentencing ..."

H.R. 3713 , but not S. 2123 , would insist on a sentence of imprisonment for not more than 5 years to be added to, and to be served after, any sentence imposed for the drug trafficking, exporting, or importing offenses, when heroin or fentanyl are involved.

In addition, H.R. 2944 provides that no person shall be sentenced to enhanced punishment under the Controlled Substances Act if the conviction was for possession of a controlled substance, was classified as a misdemeanor in the relevant jurisdiction, or the conviction has been set aside. Further, the government bears the burden of proof in proving beyond a reasonable doubt the existence of the prior conviction.

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. 502 / H.R. 920 would raise the qualification threshold to 3 criminal history points from 1 criminal history point and make no further changes.

H.R. 2944 would expand the safety valve to mandatory minimums associated with the use of firearm during and in furtherance of a drug trafficking cases as well as to drug trafficking mandatory minimums. The bill would also raise the criminal history point threshold to 3 as long as the defendant's prior criminal record did not consist of convictions for violence, firearms, racketeering, terrorism, or sex offenses. H.R. 2944 would also discount convictions that were the product of a reduced, distressed, or coerced state of mind.

S. 2123 and H.R. 3713 would change the safety valve as well. First, a defendant would be safety valve eligible with 3 or fewer criminal history points if he 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.

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. In contrast, H.R. 2944 does not reduce these mandatory minimum penalties. However, it alters the definition of a "serious drug offense" to one punishable by imprisonment for not more than 10 years, resulting in a sentence of more than 13 months, conviction for which occurred within the last 10 years not counting time in prison. In addition it alters the definition of "violent felony" to require a sentence of imprisonment for 13 months. Further, it provides that an individual may not be sentenced under the provision unless the U.S. Attorney files an information with the court—served on the defendant or counsel—specifying the previous convictions to be relied upon.

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.

S. 2123 and H.R. 3713 would make clear that a conviction must have become final before it could be counted for 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 into 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 differs from H.R. 3713 in one respect. As it would do in case of drug mandatory adjustments, it would make it clear that resentencing proceedings would be subject to the victims' rights provisions of 18 U.S.C. 3771, and that an inquiry into facts and circumstances associated with the initial sentencing would be a prerequisite to consideration of a resentencing motion. Section 3771 assures victims of the rights "to reasonable, accurate, and timely notice of any public court proceeding, involving the crime ..." and "to the right to be reasonably heard at any public proceeding in the district court involving ... sentencing ..."

While H.R. 2944 also requires that a conviction be final to be counted for purposes of enhancing the mandatory minimum, it does not reduce the repeat offender mandatory minimum from imprisonment. In addition, the bill would modify the current statutory trigger's "during and in relation to any crime of violence or drug trafficking crime" language to "not include any possession not on the person of, or within arm's reach and otherwise readily and immediately accessible to the defendant at the time and place of the offense."

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.

In contrast, H.R. 2944 contains no such provision.

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. H.R. 2944 would simply make the FSA retroactively applicable.

New Mandatory Minimums

H.R. 3713 and H.R. 2944 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.

In contrast, H.R. 2944 does not create new mandatory minimum sentences for crimes.

Inventory of Federal Crimes

S. 2123 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 for each offense: the attendant penalties and mens rea; the number of referrals for prosecution, prosecutions, convictions, and sentences imposed; as well as the number of prosecutions which did not require proof of a mens rea. The compilation of federal regulatory offenses would be organized by enforcing agency and would require the same information for regulatory offenses as required for statutory offenses. The Attorney General and pertinent agency head would also be responsible for the creation of a publicly available online index of such offenses. Similarly, H.R. 2944 requires the Attorney General to produce and publish a list of "the various Federal law violations that carry criminal penalties." In addition, federal agencies must obtain the Attorney General's approval to add a criminal penalty to an agency regulation. Finally, the Attorney General must develop procedures to provide coordination between the Department of Justice and other federal agencies to determine whether criminal or civil penalties are most appropriate to address unlawful conduct that involves federal agencies; and to coordinate between federal and state law enforcement officers to reduce duplicative prosecutions.