According to a November 2013 report by the Urban Institute, the federal prison population has increased 790 percent since 1980. All prisons in the U.S. Bureau of Prisons (BOP) are over capacity, some as much as 35 to 40 percent. The cost of maintaining this dangerously overcrowded system is staggering: a March 2014 report by the Congressional Research Service put the total fiscal appropriations for the BOP at $6.859 billion for Fiscal Year 2014, for the federal prison system alone. The reason for this crisis: as of July24, 2014, the BOP housed 216,312 inmates—100,549 being drug offenders. Put another way, drug offenders make up 49.7 percent of the federal prison population; its closest crime category competitor being “weapons, explosives, arson” with just 31,784 offenders. Compare these two categories with the mere 80 offenders convicted of threat of national security offenses.
In 2012 alone, more than 23,000 people were committed to the BOP for a drug offense—approximately 60 percent of them subject to a mandatory minimum sentence, even though half of them had no criminal history. Astonishingly, that same year nearly 7,000 people were convicted of marijuana offenses, more than any other drug offense. The Urban Institute report found that many federal drug offenders are serving mandatory minimum sentences of 10 years, 20 years, or life, are low level offenders involved in distribution conspiracies involving large quantities of drugs, medical marijuana distributors, or offenders who did not have enough “snitch information” to negotiate what’s called a “safety valve” plea agreement.
If this does not grab your attention, consider this: in 2010, a total of 10,694 offenders were sentenced to mandatory minimums in federal court—7,212 of whom were convicted of drug offenses. Compare that to the mere 1127 mandatory minimum sentences imposed in child pornography and sex abuse offenses, or the 2,222 mandatory minimum sentences imposed for gun offenses. In a word, selling weed—a practice now legal in two states—is considered by our United States Congress to be a more serious crime than child sex or gun violence offenses.
But Congress has at least three opportunities pending before it to reform the mandatory minimum injustices wrought by our federal drug laws: the Justice Safety Valve Act of 2013, the Smarter Sentencing Act of 2013, and a proposed change by the U.S. Sentencing Commission that would reduce the base offense level for most drug offenders by two points and have it applied retroactively. If approved, these three measures would significantly ease federal prison overcrowding, save hundreds of millions of dollars in U.S. Justice Department enforcement priorities, begin to correct the racial disparity so prevalent in federal sentencing for drug offenses, and allow mandatory minimums to be reserved for the most dangerous offenders.
The Fifth Circuit Court of Appeals recently joined the First, Sixth, Seventh, and Tenth Circuits in holding that a sentencing judge has the discretion absent a “5K11 motion” to consider a defendant’s cooperation in determining whether to impose a downward departure of the Guidelines recommended sentence. In fact, these circuits have held that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under 18 U.S.C. § 3553(a) is a significant procedural error.
In a 2013 report, Families Against Mandatory Minimums (FAMM) said the Justice Safety Valve Act of 2013 would amend § 3553(a) to give judges the authority to sentence offenders below the minimum if those “sentences do not fulfill the goals of punishment listed in § 3553(a).  The FAMM said Act would provide the following benefits:
• Protect Public Safety: Safety valves do not mean that people will avoid prison time, just that they won’t get more prison time than necessary.   Safety valves reserve the scarce prison space for people who pose a real threat to the community, and they help prevent prison overcrowding • Give courts flexibility to punish enough – but too much: Safety valves allow courts – in some circumstances – to sentence a person below the mandatory minimum if that sentence is too lengthy, unjust or unreasonable, or doesn’t fit the offender or the crime. For example, a safety valve allows the court to avoid unreasonable outcomes, such as a first-time drug courier getting the same sentence as a major drug kingpin. • Save taxpayers money: When courts sentence people below the mandatory minimum, people spend less time in prison than they otherwise would be required to, which costs taxpayers less in corrections costs. These savings can be returned to taxpayers or invested in more effective anti-crime strategies, e.g., more police and investigators on the street.
The goal of the Smarter Sentencing Act is to reduce prison costs through inmate population decreases accomplished through fairer minimum sentences for non-violent federal drug offenders. FAMM lists five goals of this Act:
1. The Act will save billions of dollars currently spent incarcerating nonviolent drug offenders. Reducing prison overcrowding not only saves money but allows for expenditure of money for other vitally needed services such as law enforcement and victims’ programs. While the Act does not repeal any federal mandatory minimum sentences, it does reduce certain 20-year, 10-year, and 5-year mandatory minimum drug sentences to 10, 5, and 2 years, respectively. Unfortunately, the Act will not be applied retroactively, and thus, will create two disparate sentencing classes of nonviolent drug offenders: those with smarter sentences and those with dumber sentences. 2. 18 U.S.C. §3553(f) provides a “drug safety valve” as way to avoid a mandatory minimum sentence. To qualify for this safety valve, the offender must meet five requirements spelled out in the statute. One of those requirements is that the offender must have a criminal history of no more than a 1 criminal history point as defined under the U.S. Sentencing Guidelines. The Act would allow offenders with 1 or 2 criminal history points to qualify for the safety valve provisions. 3. The Act would allow nearly 9000 federal inmates (87% of whom are black) convicted of crack cocaine offenses to petition the courts for fairer sentences under the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine from 100:1 to 18:1. Sentence reduction will not be automatic, leaving the sentencing court with the discretion of determining whether the Act should apply. 4. The Act attempts to address the bipartisan concern about “over-criminalization;” namely, that too many federal laws and regulations carry unnecessary criminal penalties that send too many innocent people to prison who had no intent to knowingly violate those laws and regulations. The Act would require the U.S. Justice Department and other federal agencies to compile publicly available information on their websites about all their laws and penalties, including the penalty for violation and the requisite intent to constitute a violation. 5. Amendments to the original version of the Act would add new mandatory minimum sentences when victims are harmed. For example, a 5 year minimum would be added for sexual abuse and a 10 year minimum for interstate domestic violence. Some victims’ rights advocates oppose these suggested mandatory minimums because they say it would make it less likely that the victims would report the abuse and violence.
The Fair Sentencing Act was enacted by Congress on July 28, 2010. The Act was signed into law by the President on August 3, 2010. In response to this Act, the U.S. Sentencing Commission issued an emergency amendment to U.S. Sentencing Guideline 2D1.1(c) which effectively reduced the base offense level for various quantities of crack cocaine. The 100:1 ratio for crack cocaine versus powder cocaine was reduced to 18:1. This amendment became known as Amendment 750. The Commission then amended Amendment 750 to make it retroactive. This amendment became known as Amendment 759. Both amendments became effective November 1, 2011.
A U.S. District Court generally cannot “modify a term of imprisonment once it has been imposed” unless a defendant is eligible for a reduction pursuant to 18 U.S.C. § 3582(c). Subsection (c) (2) allows for a reduction if: (1) the defendant’s sentence was “based on a sentencing range that has subsequently been changed by the Sentencing Commission; and (2) “a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
In April 2014, the U.S. Sentencing Commission proposed a change in the Drug Quantity Table spelled out in U.S. Sentencing Guideline § 2D1.1. The proposed change would reduce the base offense level for most drug offenders by two points. In July 2014, the Commission voted to make the proposed change retroactive.
Congress has until November 1, 2014 to approve the proposed changes. Congressional approval would make the changes effective in November 2015. The one-year delay was added to give judges time to determine which eligible offender is suitable for a reduction of sentence and to give the Government an opportunity to determine whether a sentence reduction would pose a threat to public safety.
Early estimates suggest that by November 2015, some 45,000 drug offenders will have their sentences reduced by 25 months. It is believed that judges will grant 80 percent of the requests for sentence reduction. Unlike the changes brought by Amendments 750 and 759, which primarily affected crack cocaine offenders, the latest changes would impact all drug offenders: methamphetamine (28%), powder cocaine (27%), crack cocaine (19%), marijuana (14%), and heroin (3%).
In Fiscal Year 2012, 60 percent of convicted federal drug offenders faced mandatory minimum sentences. Beyond forcing many defendants into “cooperation agreements” with the Government, mandatory minimums give prosecutors leverage to force drug defendants into plea agreements. Human Rights Watch reported in December 2013 that only 3 percent of federal drug offenders elect to face a trial. Those who do exercise their right to a jury trial receive an average prison sentence of 16 years compared to those who plead out and receive an average prison sentence of 5.4 years.
This is why some federal prosecutors and law enforcement officials staunchly defend harsh mandatory minimums because they encourage guilty pleas and compel law enforcement cooperation. This is a mistaken premise. The U.S. Sentencing Commission reports that 97.5 percent of defendants not facing mandatory minimum plead guilty while 94.1 percent of those facing mandatory minimum plead guilty. The Commission noted that 15.2 percent of the sex offenders facing mandatory minimums elected to face trial—twice the rate of those sex offenders not facing mandatory minimums.
According to the Human Rights Watch report, the four Districts of U.S. District Courts in Texas impose some of the harshest drug sentences in the nation: Northern District, 113 months; Eastern District, 99 months; Southern District, 71 months; and Western District, 59 months. The Central District of Illinois has the highest sentence average, 160 months, while federal courts in Arizona imposed the lowest average sentences, 25 months
These sentencing figures alone represent the need for sentencing reform in our federal court system. We join the chorus of voices urging Congress to approve the three measures outlined in this article—measures that would significantly reform federal sentencing in this country.