Smarter Sentencing Act Passes Major Hurdle in Congress

A new law that would reduce drug sentences passed a major Senate hurdle this week with bipartisan support. It still has a long way to go before it will become law, but it is off to a good start.

The Smarter Sentencing Act, which passed the Senate Judiciary Committee, would take some of the sting out of federal drug sentencing. It would do so in three ways:

First, it would expand eligibility for the drug “safety valve” so that people with some criminal history – up to Guidelines Category II – would still be eligible. Under current law, a defendant must be in Category I to benefit from the “safety valve.” Under the new law, if passed, someone could have a serious conviction on their record and still be eligible. The “safety valve” is critical to many defendants because a) it lowers their offense level by two points and b) it can drop an offender below a mandatory minimum sentence.

Second, the Smarter Sentencing Act would make the Fair Sentencing Act (FSA) retroactive. The FSA is the law that reduces the sentencing disparity between crack cocaine and powder cocaine. If the new law is passed, someone who was sentenced for a crack cocaine offense before the FSA was enacted could file a motion and seek a shorter sentence under the FSA sentencing scheme.

Third, and perhaps most significantly, the Smarter Sentencing Act would lower the mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(B). The 10-year mandatory minimum (for 1 kilo or more of heroin or five kilos or more of cocaine) would drop to five years. The five-year mandatory minimum (for 100 grams or more of heroin or 500 grams or more of cocaine) would drop to two years.

It goes without saying that this would be a great bill if it manages to pass Congress and get to President Obama. It would be an excellent starting point to developing a less destructive drug-sentencing scheme. And there is reason to think it might succeed: it has support from the full range of the political spectrum, from Tea Party favorite Sen. Rand Paul to Democratic stalwart Sen. Carl Levin.

The measure is also backed by Attorney General Eric Holder, although, oddly enough, it is opposed by the National Association of Assistant United States Attorneys, which calls the current drug-sentencing scheme “well-constructed and well worth preserving.”