A little-known agency voted Thursday for a change that could have a major impact on federal drug sentences. The U.S. Sentencing Commission voted unanimously for an amendment 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 Commission expects the change to affect about 70 percent of drug trafficking defendants. The commission also plans to study the impact of making the amendment retroactive.
Judge Patti B. Saris, chair of the Commission, called the amendment an important step in solving the “urgent” problem of prison overcrowding, “with that population almost three times where it was in 1991.”
The amendment adjusts the guidelines that judges consult when sentencing defendants. In some cases, harsh statutory mandatory minimum sentences apply to drug crimes and require judges to impose a particular sentence. But when those laws don’t apply, judges turn to a separate set of guidelines, which were developed based on the same scheme that recommends sentences based on the quantity of drugs involved in the offense, rather than the nature of the offense or the role of the defendant. The amendment now being considered would correct recommendations that actually call for even harsher sentences than the comparable mandatory minimums, and could have a dramatic impact on the federal prison population.
The Sentencing Commission is an independent 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.
Even the amended guidelines remain tethered to the draconian mandatory minimum sentencing scheme, which is why Saris called the change “modest” relative to the vast scope of the problem. “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.
U.S. Attorney General Eric Holder has also been doing his part to try to alleviate the federal prison crisis even in the absence of a change to federal law. Endorsing the amendment last month, Holder announced that he would would direct his prosecutors not to seek the longer sentences starting now. Holder has also directed prosecutors not to seek mandatory minimum sentences against some drug defendants, not to target marijuana offenders complying with robust state laws. These instructions, however, do not bind prosecutors, nor do they insulate anyone from a particular prosecution or sentence.
Two bipartisan bills pending in Congress aim to reform mandatory minimum sentences. 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. That bill has been cleared by the Senate Judiciary Committee, and picked up four new Republican sponsors this week, bringing the total list of co-sponsors to 26.
The Sentencing Commission amendment will go into effect in November if Congress doesn’t act to reject it before then.