In the latest move toward reform of draconian sentencing laws, the U.S. Sentencing Commission advanced an amendment Thursday that would discourage judges from sentencing drug defendants to prison terms even higher than those required by mandatory minimum sentences. The change would likely lower sentences by an average of 11 months, and reduce the number of federal prisoners by an estimated 6,550 within five years, according to Commission estimates.
The Sentencing Commission is a little-known agency that sets guidelines for judges, including suggested sentence ranges for crimes and factors for judges to consider in setting a sentence. Unlike mandatory minimum sentences that compel judges to dole out a particular prison term for a particular conviction, these guidelines are no longer considered compulsory. Nonetheless, because a judge’s failure to adequately consult the guidelines can be a basis for appeal, they have played as much of a role as anything in inflating federal drug sentences and filling federal prisons with a population that has spiked more than 790 percent since 1980.
The move toward draconian drug prison sentences started after the passage of the Anti-Drug Abuse Act in 1986, which imposes mandatory minimum sentences based on quantity of drugs rather than role in the crime that start at 5 or 10 years in prison, and ratchet up from there. The guidelines apply when there is no mandatory minimum sentence. But after passage of the ADAA, the Sentencing Commission used the mandatory minimum drug sentences as the basis for adjusting its own sentencing recommendations upwards, using the same quantity-based recommendations at the expense of other sentencing factors.
On Thursday, the Sentencing Commission voted to take one major step toward correcting this over-sentencing: It passed an amendment to the guidelines that would lower recommended sentences for several drug trafficking offenses that actually exceed the already-onerous requirements of the mandatory minimum sentences. As Families Against Mandatory Minimums explains, this amendment would correct an overzealous application of the ADAA and release thousands of prisoners just within the first few years.
Even so, as Commission Chair Patti B. Saris said Thursday, “Our proposed approach is modest” in comparison to the vast scope of the problem. The new sentence recommendations are still tied to the existing mandatory minimum sentences. And because the guidelines are anchored in Congress’ mandatory minimum scheme, there is only so much the sentencing commission can change without a change to the law.
“The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players,” Saris said. Two bipartisan bills pending in Congress would reform judicial discretion in sentencing going forward. One of them, the Smarter Sentencing Act, would also make retroactive the 2010 Fair Sentencing Act, which reduced a gross, racially discriminatory disparity in drug sentencing.
The Sentencing Commission’s proposed changes will now be published to solicit public comment, and eventually, will also require approval by Congress.