An In-Depth Look at the Smarter Sentencing Act

The Smarter Sentencing Act (2019) was introduced by Senator Mike Lee (R-UT) on November 11, 2019. The SSA was referred to the Committee on the Judiciary in the U.S. Senate.

Senator Mike Lee was joined by Senators Dick Durbin (D-IL) and Time Kaine (D-VA) in introducing the bill. The goal of the legislation is to modernize federal drug sentencing policies by lowering certain mandatory drug sentences.

The SSA is part of a wave of sentencing reform that both Congress and the Trump Administration have pushed in recent years. President Trump signed the First Step Act in December 2018. One of the major aspects of the bill is to provide current inmates an opportunity for sentencing relief for certain defendants who received mandatory minimum sentences prior to the Fair Sentencing Act of 2010.

History of the SSA

There have been several versions of the SSA that have been introduced in Congress in the past decade. The SSA (2013/2014) was introduced in the United States Senate on July 31, 2013 by Senator Durbin. It was referred to the Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights. Hearings were held. Among many amendments to the criminal code, this version of the SSA authorized a court that imposed a sentence for a crack cocaine possession or trafficking offense committed before August 3, 2010, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the government, or the court, to impose a reduced sentence as if provision of the Fair Sentencing Act of 2010 were in effect at the same time such offense was committed. The Fair Sentencing Act of 2010 reduced the statutory penalties of crack cocaine offenses to produce an 18-to-1 crack-to-powder drug quantity ratio. This also eliminated the mandatory minimum sentence for simple possession of crack cocaine and increased statutory fines. 

The House of Representatives SSA (2013), H.R. 3382, was introduced on October 30, 2013 by Representative Labrador (R-ID-1) and referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. Among other amendments to the federal criminal code, the bill amended the federal criminal code to direct the court to impose a sentence for specified controlled substance offenses without regard to any statutory minimum sentence if the court finds that the criminal history category for the defendant is not higher than two. At the time, the court could disregard the statutory minimum if the defendant did not have more than one criminal history point.

Both of these bills stalled. Senator Lee reintroduced the Smarter Sentencing Act of 2015 (S502) and Representative Labrador reintroduced the bill in the house, HR920.

Both bills contained many of the similar provisions of the previous versions. In March 2015, a Bi-partisan Summit on Criminal Justice Reform met with the goal to discuss revising the U.S. criminal justice system. With this new emphasis on sentencing reform, both bills began to receive bi-partisan support and both bills had bi-partisan co-sponsors.

As the legislative process continued, the United States Sentencing Commission published “Life Sentences in the Federal System”. In October 2015, Representative Bob Goodlatte (R-VA) used this to create a new bill, the Sentencing Reform Act of 2015 (HR 3713). The Senate also introduced a mirror bill by Senator Chuck Grassley (R-IA). The Senate committee passed it out and the bill was sent to the Senate for consideration. The bill stalled on the floor.

Senator Grassley reintroduced the Sentencing Reform and Corrections Act of 2017 (S.1917) on October 4, 2017. This bill also stalled and died in Congress.

SSA of 2019 Amendments

The following are the proposed changes under the SSA.

Controlled Substances Act (21 U.S.C. 801 et seq.) 

Changes to 21 U.S.C. 802

(57)  (58) The term "serious drug felony" means an offense described in section 924(e)(2) of title 18 for which-
(A) the offender served a term of imprisonment of more than 12 months; and
(B) the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense.

(58) (59) The term "serious violent felony" means-

(A) an offense described in section 3559(c)(2) of title 18 for which the offender served a term of imprisonment of more than 12 months; and
(B) any offense that would be a felony violation of section 113 of title 18, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.

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

Changes to 21 U.S.C. 841(b)(1),

under subsection (A) for penalties related to cocaine, heroin, PCP, marijuana, and other drugs:

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or 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, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual or $50,000,000 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 of not less than 15 years 10 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, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both.

Changes to 21 U.S.C. 841(b)(1),

under subsection (B) for penalties related to cocaine, heroin, PCP, marijuana, and other drugs:

such person shall be sentenced to a term of imprisonment which may not be less than 5 years 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 years not be less than 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, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both.

Controlled Substances Import and Export Act

Changes to 21 U.S.C. 960(b), subsection (1), under penalties related to cocaine, methamphetamine, PCP, marijuana, and other drugs:

the person committing such violation, other than a person who is a courier, shall be sentenced to a term of imprisonment of not less than 10 years and not more than life and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than 20 years and not more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits, other than a courier, 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, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If a person who is a courier commits such a violation, the person shall be sentenced to a term of imprisonment of not less than 5 years and not more than life. If a person who is a courier commits such a violation after a prior conviction for a felony drug offense has become final, the person shall be sentenced to a term of imprisonment of not less than 10 years and not more than life. Notwithstanding section 3583 of title 18, any sentence under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph. No person sentenced under this paragraph shall be eligible for parole during the term of imprisonment imposed therein.

Changes to 21 U.S.C. 960(b), subsection (2),

under penalties related to cocaine, methamphetamine, PCP, marijuana, and other drugs:

the person committing such violation, other than a person who is a courier, shall be sentenced to a term of imprisonment of not less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years and not 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 person, other than a courier, 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 10 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, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If a person who is a courier commits such a violation, the person shall be sentenced to a term of imprisonment of not less than 2 years and not more than life. If a person who is a courier commits such a violation after a prior conviction for a felony drug offense has become final, the person shall be sentenced to a term of imprisonment of not less than 5 years and not more than life. Notwithstanding section 3583 of title 18, any sentence imposed under this paragraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph. No person sentenced under this paragraph shall be eligible for parole during the term of imprisonment imposed therein.

New Sections

• Directive to Sentencing Commission:
  Directs the United States Sentencing Commission to review and amend, if appropriate, its guidelines and its policy statements applicable to persons convicted of an offense under the Controlled Substances Act and the Controlled Substances Import and Export Act to ensure they follow the new changes in law. The Commission is designated to consider a variety of different aspects to carry out this directive, including the findings and conclusions of the October 2011 report to Congress regarding mandatory minimum penalties, fiscal implications of any amendments to the guidelines, public safety concerns, the intent of Congress that penalties for violent, repeat, and serious drug traffickers who present public safety risks remain appropriately severe, and the need to reduce and prevent racial disparities in Federal sentencing.
  
• Report by Attorney General:
  No later than 6 months after the date of the enactment of the Act, the Attorney General shall submit a report to the House of Representative sand a Senate outlining how the reduced expenditures on Federal corrections and the cost savings resulting from this Act will be used to help reduce overcrowding in the Federal Bureau of Prisons, help increase proper investment in law enforcement and crime prevention, and help reduce criminal recidivism.
  
• For the report on federal criminal offense:
  The term “criminal regulatory offense” means a Federal regulation that is enforceable by a criminal penalty. “Criminal statutory offense” means a criminal offense under a Federal statute. The Attorney General is also required to submit a report to Congress regarding the list of all criminal statutory offenses, including the elements, and for each criminal statutory offense to provide the criminal penalty and the number of prosecutions for a 15-year period.
  
• Report on Criminal Regulatory Offenses:
  The head of each Federal agency is required to submit a report of all the criminal regulatory offenses enforceable by the agency and the potential criminal penalty of each violation and the number of violations in a 15-year period.
  
• Index of Criminal Statutory Offense:
  No later than 2 years after the date of the enactment of this Act, the Attorney General shall establish a publically accessible index of each criminal statutory offense listed in the previous report and the head of each agency shall establish a publically accessible index of each criminal regulatory offense listed in their report.

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  For more resources for you and your loved one click here.