1st Jan 2014

This entry is one of those prompted by tons of calls and emails about a jailhouse rumor. The way this one comes to us is a flood of phone calls saying they have heard that the Smarter Sentencing Act has passed and they want to know what to do next. My response is to tell them that it has not passed, and to explain the following.

So, here is the latest and greatest on the Smarter Sentencing Act of 2013 (we’ll refer to it as the “SSA” from this point forward).

Congress (both the Senate and the House) has begun to consider “The Smarter Sentencing Act of 2013.” Bills are in committee (the beginning stages of the process of a bill becoming law) in both the House of Representatives and the Senate. As of the writing of this post, text of the Senate version (S. 1410) and the House version (H.R. 3382) are identical. As of now, Congressmen and Senators are on their holiday recess, and will return mid-January, 2014. They will, presumably, take more action on these bills during the first several months after they return.

The legislation, if it finally passes, does three main things: it expands the federal “safety valve,” it clarifies some provisions of the Fair Sentencing Act of 2010, and it changes the mandatory minimums for certain drug offenses. There are some very positive aspects of this legislation, as well as some very negative aspects, in its current form.

Now, I’ll answer the most common questions I get about this legislation.

How does the SSA change the federal sentencing “safety valve”?

The “safety valve” is a provision that allows defendants to not get the mandatory minimum. Currently one of the qualifications for the application of the “safety valve” is if the defendant’s criminal history category is only 1 (that means the defendant only has 0 or 1 criminal history points). If the SSA passes, the “safety valve” would be expanded to apply to defendants whose history category is 2 (meaning they have up to 3 criminal history points). This is a great provision that would make thousands of defendants eligible for the “safety valve,” who, under current law, are not.

How does the SSA clarify the application of the Fair Sentencing Act of 2010?

The Fair Sentencing Act of 2010 increased the amount of crack cocaine that would trigger a 5- and 10-year mandatory minimum, and it did away with the 5-year mandatory minimum for possession of any crack. It became a law on August 3, 2010, and it is the current law. (The Fair Sentencing Act was the second of two changes to the “crack” sentencing guidelines. We’ll call it the “FSA” here, and I have a separate detailed article on that titled “The New Crack Law”.) If someone committed a crime before August 3, 2010, and their sentence would have been affected by the FSA, then the SSA says that defendant can get their sentence reduced.

This is a very positive provision, because it means that, if a defendant’s guideline range was lowered because of the FSA, but was ineligible because of a mandatory minimum sentence, then the SSA (if it passes) says that they are now eligible, because the SSA also reduces the mandatory minimums (discussed in the next section, below)! This is very good news.

HOWEVER, (and this is a very bad provision of the current language of the bill, and I’ll have a separate blog article about this) the SSA says the defendant cannot get his sentence reduced if (1) he already had their sentence reduced because of the FSA or (2) he applied (filed a motion) to get their sentence reduced because of the FSA, and that application was denied.

How does the SSA change mandatory minimums?

If it passes, the SSA would cut the mandatory minimums attached to controlled substance violations by 50% or more. (The 5-year mandatory minimum becomes a 2-year mandatory minimum, the 10-year minimum becomes a 5-year minimum, and the 20-year minimum a 10-year minimum.) There is some confusion among experts and practitioners about the scope and applicability of this section. There is the question of whether, despite the fact that this legislation seems to be directed at “crack” offenses only, it also changes the mandatory minimums attached to offenses involving other drugs. There is also the question of whether it is intended to be retroactive by itself. We will certainly pass along more information on this as we learn more and as the language is clarified further.

Is this going to be retroactive?

It looks like, from the language, that at least part of the bill is intended to be retroactive. What clearly looks like it is retroactive is the part that clarifies the Fair Sentencing Act of 2010 (the “FSA”) regarding the fact that those who had been ineligible under the FSA, because of their mandatory minimums, are now eligible and may file motions for retroactive application. Otherwise, there is nothing that explicitly makes the rest retroactive. Specifically, it does not say that they intend the expansion of “safety valve” and the changes to the mandatory minimums to be retroactive, except to the extent that it affects those affected by the FSA.

When will it become “law”?

When Congress returns in January, 2014, it marks the midway point in its current two-year session. The current session began in January, 2013, and will end in December, 2014. Congress then has the rest of this year for the bills to move through the committee process, go to the floor for a vote in both the House and Senate, and then go through “conference committee,” and then, if it survives all of that process and achieves “final passage,” it then goes to the President to be signed. If he signs it, it then becomes law. If it does not make it all the way through this process by the end of the session in December, 2014, then it dies, and must be reintroduced in 2015, and it all starts over from the beginning.

Is the current language likely to remain the same?

Generally, you cannot expect the bill to stay the same throughout the process. As it goes through sub-committee, committee, the full floor in each chamber, and then the conference committee, it can be amended, or changed. This means there are seven opportunities for the language of the bill to be changed, for better or for worse. It is generally unheard of for a substantial bill to go through the process unchanged. Sometimes they look very different at the end of the process than they did at the beginning. Consequently, the end product may be better for defendants or it may be worse. Stay tuned!

UPDATE: In March 2014, the Senate Judiciary Committee substantially amended its version of the bill and sent it to the full Senate. Read this post for details.

by Chad Van Cleave

Comments (1)

  • VAC on February 4, 2014 at 3:18 PM

    Fortunately, S. 1410 made it out of the Senate Judiciary Committee on Jan. 30, but it still has a long way to go before it becomes law.