United States Senators Bring Forth Smarter Sentencing Act of 2021

On March 25, 2021, Senators Durbin and several others introduced the Smarter Sentencing Act of 2021.  It is titled “S.1013 - A bill to focus limited Federal resources on the most serious offenders.”

As of this writing, the text of the act is not present on the bill page, but it is available on a page titled "Statements on Introduced Bills and Joint Resolutions."

As of 03/27/2021 text has not been received for S.1013 - A bill to focus limited Federal resources on the most serious offenders.

Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed.

Reduced Mandatory Minimums for Drug Crimes

Based on my research and reading of the law the Smarter Sentencing Act replaces the mandatory minimum under 841(b)(1)(A) (which is 1 kilo of heroin, 5 kilograms of cocaine, 280 grams of cocaine base, 10 grams of LSD, 1000 Kilograms of Marijuana, 50 grams of meth and 500 grams of a substance containing meth) from 10 years to 5 years.  Further, it reduces the “15 years” (If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment) down to 10 years.

So in other words, it would look like this:

such person shall be sentenced to a term of imprisonment which may not be less than 10 5 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life...If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felonyhas become final, such person shall be sentenced to a term of imprisonment of not less than 15 10 years and not more than life imprisonment and if death orserious bodily injury results from the use of such substance shall be sentenced to life imprisonment,

It would also replace the same portions in 841(b)(1)(B) from 5 years to two years (100 grams of a mix containing a detectable amount of heroin, 500 grams of cocaine, 28 grams of cocaine base, 1 gram of LSD, 100 kilograms or a mixture of a detectible amount of marijuana, 5 grams of meth or 50 grams of a substance containing meth) and from 10 years to 5 years.

This would look like:

such person shall be sentenced to a term of imprisonment which may not be less than 5 2 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 5 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment,

It also provides a retroactivity provision for the court to impose a reduced sentence for those sentenced before this act gets signed after considering the 3553(a) factors.

Update in Language

The act also proposes to trade the language of "Felony Drug Offense" in 841 with "serious drug felony" or "serious violent felony," the new language from the FIRST STEP Act of 2018.

“Courier” Exceptions in Smarter Sentencing Act

The Smarter Sentencing Act also adds a courier exception to the importation statute of 21 usc 960, the importation statute.

“The term 'courier' means a defendant whose role in the offense was limited to transporting or storing drugs or money.''

The Smarter Sentencing Act of 2021 indicates that a courier that is found guilty under 960(b)(1)(H) would be subject to a mandatory minimum of 5 years and not more than life (a non-courier would be looking at 10-L) and a courier that is found guilty under 960(b)(2)(H) would be subject to a mandatory minimum of 2 years to life (a non-courier would be looking at 5-L under this section).

It also provides a retroactivity provision for the court to impose a reduced sentence for those sentenced before this act gets signed after considering the 3553(a) factors (someone looking for retroactive application of this section would also have to prove that they are a “courier”).

Likelihood of Passage

As long time followers will note, we have been covering the introduction of the Smarter Sentencing Act since 2015.  I think that the time is right for its passage given the makeup of congress and the need for reform.  I certainly hope that it passes this year.