In this new session of Congress, another version of the Smarter Sentencing Act (hereafter SSA) has been introduced. It can be found and tracked at H.R. 920 (the House bill) or S. 502 (the Senate bill). It is very similar to last session’s Smarter Sentencing Act, and again proposes some changes in some drug-related mandatory minimums, the federal sentencing “safety valve,” and the retroactive application of the Fair Sentencing Act of 2010 that we believe would be very positive, although there are a couple of less-than-ideal changes. Its proposals in its current form are as follows:

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

The “safety valve” is a provision that allows defendants to receive a sentence lower than the mandatory minimum under certain conditions. 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 he or she 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).

Current law would still be in place that specifies that, to qualify for the “safety valve,” the defendant did not (for the offense for which he or she is charged) use violence or a firearm or other dangerous weapon; no one died or was seriously injured; nor did the defendant lead or organize others to participate in that offense; and he has truthfully told the Government all he knows about the crime.

This change would make many 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?

By way of background, the Fair Sentencing Act of 2010 (hereafter FSA) 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 simple possession of any crack. It became a law on August 3, 2010, and it is the current law. However, the FSA did not make the changes to the mandatory minimums retroactive. (See our separate detailed article on the FSA titled “The New Crack Law.”)

Now the SSA would amend that as follows: 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. Thus this would, in effect, make the mandatory minimum reduction retroactive.

HOWEVER, the SSA says a defendant cannot get his sentence reduced if (1) he already had his sentence reduced because of the FSA or (2) he applied (filed a motion) to get his sentence reduced because of the FSA, and that application was denied. The SSA also explicitly says that this sentence reduction would only be granted at the Court’s discretion.

This means that anyone who is considering filing a sentence reduction motion under the FSA, but thinks his chances of having it granted are not very good, should think about waiting to file the motion. If the SSA does pass and the U.S. Sentencing Guidelines are changed, then the one who waits to file in such circumstances may gain a greater reduction under the new law. However, if someone files a motion, it is denied, and then the SSA passes, then that person is out of luck on further sentencing reductions through this channel. Waiting a while longer may make the SSA’s chance of passage clearer. But if a sentence reduction under the FSA would result in one’s release in less than a year, then waiting on the SSA would be more painful.

How does the SSA change mandatory minimums?

If the SSA becomes law, it would halve the mandatory minimums set by 21 U.S.C. Section 841(b)(1)(A) (for 5 kilograms or more of cocaine and 280 grams or more of crack) and Section 841(b)(1)(B) (for 500 grams or more of cocaine and 28 grams or more of crack) as long as death or serious bodily injury did not result. (Specifically, the 5-year mandatory minimum becomes a 2-year mandatory minimum, the 10-year minimum becomes a 5-year minimum, the 20-year minimum a 10-year minimum, and the life minimum becomes a 20-year minimum in the House’s version or a 25-year minimum in the Senate’s version.)

It also changes the mandatory minimums set by 21 U.S.C. Section 960(b), which concerns the importation of illegal drugs. This version of the SSA says that “a defendant whose role in the offense was limited to transporting or storing drugs or money,” which it terms a “courier,” will have their mandatory minimum sentence reduced by 50% or more (likewise, the 5-year mandatory minimum becomes a 2-year mandatory minimum and the 10-year minimum becomes a 5-year minimum).

Will these changes (if they become law) be retroactive?

The section of SSA which is clearly retroactive is the section that makes provisions for defendants sentenced before the FSA was enacted.

Regarding the changes to the “safety valve” and the mandatory minimums set by 21 U.S.C. Section 841(b)(1) and 21 U.S.C. Section 960(b), the bill (in its present form) directs the U.S. Sentencing Commission (USSC) to amend the Sentencing Guidelines within 120 days of the bill’s enactment to match the new statutory mandatory minimums. Although the USSC could make its changes to the Sentencing Guidelines retroactive, the new statutory mandatory minimums will not be retroactive unless Congress adds language to the SSA (or passes another bill) that explicitly makes them retroactive. (This is a correction to the first published version of this blog post.)

This means that the changes proposed by the SSA (in its present version) are of limited help to people who have already been convicted.

Is the current language likely to remain the same?

It is very likely that the bill will change as it is examined by the House and Senate Judiciary Committees and (if it makes it that far) by the full House and Senate. Consequently, the end product may be better for defendants or it may be worse. We will post updates on this blog.

Is this bill likely to become law? If so, when?

Unfortunately, we forecast that the SSA is unlikely to be enacted this year or next. Although outgoing Attorney General Eric Holder has said he supports this bill’s reforms, one would think that if our elected officials really wanted to work together to pass this bill, that would have happened last year.

Congress has the remainder of 2015 and all of 2016 to agree on a version of this bill to send to the President. If the bill has not become law by the end of 2016, lawmakers will have to re-introduce these reforms in 2017.

We will post updates as this bill works its way through Congress and when other sentencing reforms are proposed and amended. Stay tuned!