Smarter Sentencing Act: The Upshot

There has been a great deal of talk lately about the need to reform mandatory minimum sentences, particularly for low-level, non-violent drug offenders. Among the most significant potential reforms that are now on the table is the Smarter Sentencing Act.

Attorney General Eric Holder recently voiced his support of the SSA, and in so doing recognized that we are not able to “simple arrest and incarcerate our way to a safer nation.”

A lot of our clients have had questions about the SSA, and so I thought it would be helpful to post this quick synopsis of what the bill does and does not do.

The first important point is that the SSA, at this point, is just a bill. It is not a law — yet. It must be passed by the Senate and the House and then be signed into law by the President.

As the SSA is currently written, if passed, it would accomplish the following reforms:

• Expand the applicability of the “safety valve” in 18 USC 3553 to encompass more federal criminal defendants. This would essentially mean that more low-level drug offenders in federal court would not be subject to harsh mandatory minimum sentences;
• Make the Fair Sentencing Act (which reduced the penalties relating to crack cocaine) expressly retroactive, meaning that federal defendants who were sentenced under the pre-Fair Sentencing Act law could petition their sentencing court to have their sentences reduced;
• Reduce by half the mandatory minimum sentence of most drug offenders.

The SSA also adds mandatory minimum sentences for some sexual and terrorism-related offenses (likely as a compromise to try to get the SSA passed). At this point it is not clear whether the reforms that reduce the mandatory minimum sentences would be retroactive. Nevertheless, the fact that the SSA even stands a chance of passing is something of a small miracle given that the general political climate on crime control has been that each politician wants to punish criminals a little more than the last person who spoke (regardless of whether it is economically feasible or fair).