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In June, a bill titled the “Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015” was introduced in the House of Representatives as H.R. 2944 (we will refer to it as the SAFE Justice Reinvestment Act hereafter). This 144-page bill is intended to include all of the sentencing reform proposals that have been made in the last few years and, if passed, would likely have a significant effect on the federal prison system. As the bill reads now (though it is very likely that its specifics will change; see explanation below), it has some great ideas, some good ideas, and some proposals that might just increase bureaucratic red tape. Here are some of the changes it would make:

  • The mandatory minimums for manufacturing and distributing controlled substances set forth in 21 U.S.C. § 841 and § 960 would only apply if the defendant was a leader in a drug trafficking organization of five or more people (and undercover law enforcement officers do not count towards the total). (See Section 401 of the bill.)
  • The “safety valve” for relief from a mandatory minimum sentence for drug crimes in 18 U.S.C. § 3553(f) would be expanded somewhat. (See Section 402 of the bill.)
  • If the Government seeks a greater penalty for a defendant because he/she has had multiple drug-related convictions, this bill would raise the standard for what the Government has to do and prove and raise the standard for the seriousness of the prior conviction. (See Section 403(f) of the bill.)
  • The Fair Sentencing Act of 2010 would be made retroactive. (See Section 404 of the bill. This is also a provision in the Smarter Sentencing Act.)
  • When passing a sentence for a controlled substances offense (including 18 U.S.C. § 924(c) penalties that involve drug trafficking offenses), a Judge would be able to “disregard … any type or quantity of a controlled substance, counterfeit substance, firearm or ammunition that was determined by a confidential informant, cooperating witness, or law enforcement officer who solicited the defendant to participate in a reverse sting or fictitious stash-house robbery.” (Cited from Section 105(b) of the bill.)
  • The SAFE Justice Reinvestment Act would make some of its provisions retroactive. Specifically, 18 U.S.C. § 3582(c) would be amended to add that anyone who was convicted of an offense with a mandatory minimum or maximum sentence that was changed by this bill can make a motion to reduce their sentence accordingly.

Here is another summary of the changes that the SAFE Justice Reinvestment Act would make.

This bill has a long road before it passes. It is encouraging that it does have noticeable bipartisan support in the House of Representatives; as of the end of August, 20 Republicans and 20 Democrats are officially sponsoring or co-sponsoring this bill. To progress, next the bill must leave the Committee on the Judiciary to be debated on the House floor. With this level of support, we are cautiously hopeful that the bill will get that far. If it passes the House, then the Senate must pass the bill. Once both the House and the Senate agree to the same version of the bill, then the bill goes to the President’s desk. It only becomes law if finishes this process before the end of 2016.

In this process, there are many opportunities for it to be derailed. First, the bill itself may change — perhaps for the worse. Although some experts advocate comprehensive change via one Congressional act since our law enforcement system has so many different but interrelated parts, putting a long list of changes in only one bill decreases the chances that enough people in Congress will agree to pass the bill as it is now. Second, in the Senate, politicians are divided on the best ways to approach drug law enforcement. Will Senators want to focus on their pet bills like the Smarter Sentencing Act, the CORRECTIONS Act, and the Justice Safety Valve Act instead of the SAFE Justice Reinvestment Act? Third, most of the attention of media and politicians is going to the 2016 elections. Although the end of 2016 may seem a long way away, Congress must make passing this bill a priority if it is to be enacted.

We will post updates as Congress works on proposals for federal sentencing reforms. Stay tuned!

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