first step act 2018 safety valve quotation

The Act requires the submission of several reports to review the BOP"s implementation of the law and assess the effects of the new risk and needs assessment system.

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The safety valve is a provision in the Sentencing Reform Act and the United States Federal Sentencing Guidelines that authorizes a sentence below the statutory minimum for certain nonviolent, non-managerial drug offenders with little or no criminal history.FIRST STEP Act was signed into law in December 2018, which expanded the safety valve to include offenders with up to four criminal history points, excluding 1-point offenses, such as minor misdemeanors.

The Federal Safety Valve law permits a sentence in a drug conviction to go below the mandatory drug crime minimums for certain individuals that have a limited prior criminal history. This is a great benefit for those who want a second chance at life without sitting around incarcerated for many years. Prior to the First Step Act, if the defendant had more than one criminal history point, then they were ineligible for safety valve. The First Step Act changed this, now allowing for up to four prior criminal history points in certain circumstances.

The First Step Act now gives safety valve eligibility if: (1) the defendant does not have more than four prior criminal history points, excluding any points incurred from one point offenses; (2) a prior three point offense; and (3) a prior two point violent offense. This change drastically increased the amount of people who can minimize their mandatory sentence liability.

Understanding how safety valve works in light of the First Step Act is extremely important in how to incorporate these new laws into your case strategy. For example, given the increase in eligible defendants, it might be wise to do a plea if you have a favorable judge who will likely sentence to lesser time. Knowing these minute issues is very important and talking to a lawyer who is an experienced federal criminal defense attorney in southeast Michigan is what you should do. We are experienced federal criminal defense attorneys and would love to help you out. Contact us today.

For some, the open ocean is prison. The Maritime Drug Law Enforcement Act (MDLEA) prohibits individuals from knowingly or intentionally distributing a controlled substance or possessing it with the intent to distribute. Empowered by the MDLEA, the United States Coast Guard arrests and detains foreign nationals hundreds of miles outside of U.S. territorial waters. After months shackled to Coast Guard ships, these individuals face the harsh reality of American mandatory minimum drug sentencing, judged by the kilograms of drugs on their vessels. But the MDLEA conflates kilograms with culpability. More often than not, those sentenced are fishermen-turned-smugglers due to financial desperation or coercionnot the kingpins the statute aspired to target.

In the First Step Act of 2018, Congress attempted to grant sentencing reprieve to these defendants by extending the safety valve provision to the MDLEA. When it works, the safety valve provision enables judges to sentence below mandatory minimum penalties. Unfortunately, the unique qualities of international drug couriers preclude them from receiving such relief. Until the legislature and presiding judges recognize this, MDLEA defendants will continue to receive irrationally long prison sentences. This Note argues that including the MDLEA as an offense under the safety valve provision fails to mitigate the MDLEA’s harsh mandatory minimum sentences.

This Note begins in Part I by discussing the MDLEA’s history as well as how the Coast Guard arrests these defendants. It then explains how the statutory mandatory minimum sentence interacts with the Sentencing Guidelines and highlights the flaws of this system. Part II addresses the safety valve provision as well as the previous circuit split regarding its applicability to the MDLEA. Part III introduces the First Step Act of 2018 and describes how it resolved that split. Part III then evaluates the effectiveness of the First Step Act’s change and provides a recent case example. Finally, Part IV concentrates on how defendants sentenced under the MDLEA are uniquely incapable of sentencing reprieve. It explores general improvements for the safety valve as well as specific changes for the MDLEA. This Note ultimately argues that Congress must amend the MDLEA’s sentencing regime.

“Mandatory minimum sentences are also unlikely to reduce crime by incapacitation, at least given the overbreadth of such laws and their failure to focus on those most likely to recidivate. Among other things, offenders typically age out of the criminal lifestyle, usually in their 30s, meaning that long mandatory sentences may require the continued incarceration of individuals who would not be engaged in crime. In such cases, the extra years of imprisonment will not incapacitate otherwise active criminals and thus will not result in reduced crime. … Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants. With drug organizations, for instance, an arrested dealer or courier may be quickly replaced by another, eliminating any crime-reduction benefit. More generally, any incapacitation-based effect from mandatory minimums was likely achieved years ago, due to the diminishing marginal returns of locking more people up in an age of mass incarceration. Based on the foregoing arguments and others, most scholars have rejected crime-control arguments for mandatory sentencing laws. By virtually all measures, there is no reason to believe that mandatory minimums have any meaningful impact on crime rates.”

“The conclusion that increasing already long sentences has no material deterrent effect also has implications for mandatory minimum sentencing. Mandatory minimum sentence statutes have two distinct properties. One is that they typically increase already long sentences, which we have concluded is not an effective deterrent. Second, by mandating incarceration, they also increase the certainty of imprisonment given conviction. Because, as discussed earlier, the certainty of conviction even following commission of a felony is typically small, the effect of mandatory minimum sentencing on certainty of punishment is greatly diminished. Furthermore, as discussed at length by Nagin (2013a, 2013b), all of the evidence on the deterrent effect of certainty of punishment pertains to the deterrent effect of the certainty of apprehension, not to the certainty of postarrest outcomes (including certainty of imprisonment given conviction). Thus, there is no evidence one way or the other on the deterrent effect of the second distinguishing characteristic of mandatory minimum sentencing (Nagin, 2013a, 2013b).”

Tonry, Michael. “Fifty Years of American Sentencing Reform — Nine Lessons.” 7 Dec. 2018, Crime and Justice—A Review of Research. Forthcoming. Available at SSRN:https://ssrn.com/abstract=3297777

“Mandatory Sentences. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.

“Mandatory sentencing laws are a fundamentally bad idea. From eighteenth century England, when pickpockets worked the crowds at hangings of pickpockets and juries refused to convict people of offenses subject to severe punishments, to twenty-first century America, the evidence has been clear. Mandatory minimum sentences have few if any discernible deterrent effects and, because of their rigidity, result in unjustly harsh punishments in many cases and willful circumvention by prosecutors, judges, and juries in others. In our time, when plea bargaining is ubiquitous, mandatories are routinely used to coerce guilty pleas, sometimes from innocent people (Johnson 2019).

‘Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects … Existing knowledge is too fragmentary [and] estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making. (Travis, Western, and Redburn 2014, p. 83)’

“Contemporary research thus confirms longstanding cautions against enactment of mandatory sentencing laws. Their use to coerce guilty pleas is new and distinctive to our times. Even innocent defendants are sorely tempted to plead guilty and accept probation or a short prison term rather than risk a mandatory 10- or 20-year sentence. The late Harvard Law School professor William Stuntz observed that ‘outside the plea-bargaining process’ prosecutors’ threats to file charges subject to mandatories ‘would be deemed extortionate’ (2011, p. 260). Federal Court of Appeals judge Gerald Lynch similarly observed that prosecutors’ power to threaten mandatories has enabled them to displace judges from their traditional role: It is ‘the prosecutor who decides what sentence the defendant should be given in exchange for his plea’ (2003, p. 1404). American sentencing has become more severe in recent decades; prosecutors bear much of the responsibility (Johnson 2019).

“Every authoritative law reform organization that has examined American sentencing in the last 50 years has proposed elimination of mandatory minimum sentence laws. These included, in earlier times, the 1967 President’s Commission on Law Enforcement and Administration of Justice, the 1971 National Commission on Reform of Federal Laws, the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the 1979 Model Sentencing and Corrections Act proposed by the Uniform Law Commissioners, and the American Bar Association’s 1994 Sentencing Standards. The American Law Institute’s Model Penal Code—Sentencing offered the same recommendation in 2017 (Reitz and Klingele 2019).”

Considerable empirical research has shown that racial disparities in sentencing are pervasive: “one of every nine black men between the ages of twenty and thirty-four is behind bars.” In United States v. Booker, the U.S. Supreme Court rendered the mandatory guidelines merely advisory. This study, looking not just at judicial opinions but also at plea agreements, charging decisions, and other factors contributing to sentencing, shows that this racial disparity has actually not increased since more judicial discretion was permitted. Instead, the black-white gap in sentencing “appears to stem largely from prosecutors’ charging choices, especially to charge defendants with ‘mandatory minimum’ offenses.” Removing these minimums as advisory guidelines would help shift toward greater racial equalization in the sentencing arena.

“Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.”

The Pew Charitable Trusts. “More Imprisonment Does Not Reduce State Drug Problems.” March 2018.https://www.pewtrusts.org/-/media/assets/2018/03/pspp_more_imprisonment_does_not_reduce_state_drug_problems.pdf

After many months of negotiations between a Republican-controlled U.S. Congress and the Trump Administration, on December 21, 2018, the First Step Act of 2018 (FSA) was signed into law by President Trump.[1] While this legislation was named the “First Step Act” to signal that it was the first attempt at incremental change to the federal criminal justice system, that name is actually a misnomer and ignores several successful reforms that preceded the legislation’s passage.[2] The FSA was actually the next step of many previous steps that have resulted in reforms far more significant to the federal criminal justice system.

Well before Jared Kushner, President Trump’s son-in-law, joined with some conservative and progressive organizations and became interested in federal criminal justice reform, there were many criminal justice, civil rights, human rights, and faith-based activists who successfully advocated for justice reform, including sentencing reform, on the federal level over the past fifteen years. Early supporters of the FSA did not think that President Trump or the Republican Congress would support changes to sentencing laws, and were satisfied with including what they considered prison reform provisions or “back end” changes to the criminal justice system.[7] In addition, former U.S. Attorney General Jeff Sessions, the DOJ, and several members of Congress opposed including sentencing reforms.[8]

During the first six months after the law was enacted, almost all of the people who have benefited from the law benefited from the sentencing provisions that early supporters and former Attorney General Sessions were willing to sacrifice. However, many criminal justice, civil rights, and faith advocates, as well as members of Congress understood that no true changes to the federal system could happen without addressing the unjust sentencing laws that have contributed to the mass incarceration crisis in this country.[9]

The possibility of these efforts actually began under another Republican President, George W. Bush, who in his 2004 State of the Union speech said, “America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.”[11] This sentiment being expressed by a Republican President, a member of a party that has been known as the more “law and order” political party of the two major parties, created an opening to begin a conversation about criminal justice reform. Later that year, President Bush announced his Prisoner Re-Entry Initiative (PRI) designed to assist formerly incarcerated people in their efforts to return to their communities. PRI connected people returning from prison with faith-based and community organizations to assist them in finding work and prevent them from recidivating.[12] Ultimately, Congress passed legislation in 2008 called the Second Chance Act (SCA) that created funding for organizations around the country to help people coming home from prison by providing reentry services needed to transition back to their communities.[13] The concept for this federal funding was born out of President Bush’s PRI.

In 2005, the American Civil Liberties Union (ACLU), Brennan Center for Justice, and Break the Chains organizations published a groundbreaking report titled, Caught in the Net: The Impact of Drug Policies on Women and Families.[14] This report was one of the first publications to document the alarming rise of incarceration of women for drug offenses. In 2005, there were more than eight times as many women incarcerated in state and federal prisons and local jails as in 1980. The number of women imprisoned for drug-related crimes in state facilities increased by 888% between 1986 and 1999.[15] These numbers are important because more than forty-five percent of the people in federal prison are there for drug offenses, of which seven percent are women.

Almost simultaneously, federal advocates began to reinvigorate efforts to address one of the most notoriously discriminatory federal criminal laws, also known as the 100 to one crack to powder disparity. This law, enacted in 1986, punished people more harshly for selling crack cocaine than it did powder cocaine. Under the 1986 Anti-Drug Abuse Act, a person would receive at least a five-year mandatory minimum sentence for selling 500 grams of powder cocaine but would receive the same sentence for selling merely five grams of crack cocaine. More importantly, what was apparent at the time was that crack cocaine was used in African-American communities because it was more readily available due to the lower cost compared to powder cocaine. Powder cocaine was used more often by whites because they could afford to purchase the more expensive drug. In 2010, President Barack Obama signed into law the Fair Sentencing Act (FSA 2010) which reduced the 100 to one disparity between crack and powder cocaine to eighteen to one and eliminated the five-year mandatory sentence for possession of crack cocaine.[16]

Between 2005 and 2019, a combination of legal, legislative, executive, and U.S. Sentencing Commission (Sentencing Commission) law and policy changes resulted in reforms that led to a decline in the federal prison population of more than 38,000 people.[21] At its height, the BOP held more than 219,000 people in federal prisons across the country. As of September 2019, those numbers have decreased to 177,251.[22] The reason for the significant decline is because these legal and policy changes were focused on revamping federal sentencing and retroactive application of changes. Similarly, the most impactful provision of the FSA has been retroactivity of the FSA 2010. The Sentencing Commission estimates that the expansion of the 1994 safety valve provision[23] will also have a significant effect for years to come.

Some of these reforms took place years before the “First Step” Act or bills that preceded it[24] were even thought of, but it is important to understand how these and other policy changes laid the foundation for a “First Step” Act to become law. Furthermore, early supporters of the “First Step” Act cannot rewrite history with the title of a bill. In the end, this legislation was an example of incremental change to the federal criminal justice system, but it was not the first example, nor the most significant. In order for history to reflect an accurate picture of how reforms to the federal criminal justice system have successfully unfolded over the past decade or more, this Article will detail the actual first steps that led to a political environment in Washington where criminal justice reform could be considered, and ultimately enacted in 2018.

Mandatory minimum penalties are criminal penalties requiring, upon conviction of a crime, the imposition of a specified minimum term of imprisonment.[25] The Boggs Act, which provided mandatory minimum sentences for drug offenses, was passed in 1951.[26] In 1951, Congress began to enact additional mandatory minimum penalties for more federal crimes.[27] Congress passed the Narcotics Control Act in 1956, which increased these mandatory minimum sentences to five years for a first offense and ten years for each subsequent drug offense.[28]

Since then, mandatory minimum sentences have proliferated in every state and federal criminal code. In 1969, Nixon called for drastic changes to federal drug control laws. In 1970, Congress responded with the Comprehensive Drug Abuse Prevention and Control Act of 1970, supported by both Republicans and Democrats, which eliminated all mandatory minimum drug sentences except for individuals who participated in large-scale ongoing drug operations. Nixon signed the Act on October 27, 1970.[29]

Ironically, the next year, Nixon declared a “war on drugs” and increased the presence of federal agencies charged with drug enforcement and supported bills with mandatory sentences.[30] John Ehrlichman, an aide to Nixon, more recently has admitted that the “war on drugs” was actually a war on black people:

Mandatory minimum sentences for federal drug offenses emerged again after the death of Len Bias. In 1986, University of Maryland basketball star Len Bias died of a drug overdose just days after the Boston Celtics picked him in the NBA draft.[32] After the reemergence of mandatory sentences in federal law in the 1980s, many observers began to see the same problems that lead to the repeal of drug mandatory minimums in 1970. Mandatory sentences prohibit judges from reducing an individual’s sentence based on mitigating factors such as circumstances of the case or a person’s role, motivation, or likelihood of repeating the crime. Treating similar defendants differently and different defendants the same is unfair. Also, it is ineffective at reducing criminal behavior because mandatory sentences do not take into account the many factors prosecutors consider when deciding if they will charge the minimum sentence.[33]

Contrary to popular belief, mandatory minimum sentencing laws are neither mandatory nor do they impose minimum sentences. Some have said that the combination of unjust sentences and a dangerous combination of unencumbered prosecutorial power has created what is known as the “trial penalty.”[36] The trial penalty is when people who exercise their right to trial receive higher sentences than those who plead guilty. True mandatory sentencing laws would result in everyone arrested for the same crime receiving the same sentence if convicted. But in reality, mandatory sentences simply transfer the discretion that a judge should have to impose an individualized sentence based on relevant factors, such as a defendant’s role in the crime, criminal history, and likelihood of reoffending, and give that discretion to prosecutors.

A prosecutor need never disclose her reasons for bringing or dropping a charge. Judges, on the other hand, must disclose their reasons for sentencing in the written public court record, and aggravating factors can be contested by the defendant.[37] A defendant faced with a plea deal of 1.5 years or a risk of twenty years imprisonment if he goes to trial is likely to choose the former, no matter how weak the evidence. Individuals who choose to exercise their constitutional rights and go to trial are often sentenced not only for their misconduct, but also for declining to take the plea deal on the prosecutor’s terms.[38] The threat of mandatory minimum penalties may cause defendants to give false information,[39] to plead guilty to charges of which they may actually be innocent,[40] or to forfeit a strong defense.[41]

Federal mandatory minimum laws and some state laws afford defendants relief from the mandatory minimum in exchange for information helpful to prosecutors. People charged with low-level crimes and charged with mandatory minimums—drug couriers, addicts, or those on the periphery of the drug trade, such as spouses—often have no information to give to prosecutors for a sentence reduction. Finally, it is extremely expensive to incarcerate people under mandatory sentences. By putting all discretion in the hands of prosecutors who have a professional interest in securing as many convictions as possible, mandatory minimums ensure that public policy concerns about cost, racial disparities, and whether a particular sentence results in public safety are not a priority.[42] The decision regarding what level of incarceration will serve public safety is best left in the hands of judges, who have more of an incentive to balance public safety needs against the facts of an individual case.

In the 1970s, observers of the American judicial system were increasingly concerned with the widespread disparity in sentencing. Judges, with very broad discretion, imposed widely varying sentences for the same offenses. The enactment of the Sentencing Reform Act of 1984 (SRA)[43] was Congress’s response to the growing inequality in federal sentences.[44] The SRA’s objectives were to increase certainty and fairness in the federal sentencing system and to reduce unwarranted disparity among individuals with similar records who were found guilty of similar crimes. The legislation created the Sentencing Commission, an independent expert panel given the responsibilities of producing federal sentencing guidelines and monitoring the application of the guidelines.[45]

As enacted, the SRA codified a framework for a determinate sentencing scheme under federal law.[46] Supporters of the SRA wanted to reduce unwarranted disparity among defendants having similar records or guilty of similar conduct. They also wanted to increase certainty and fairness of sentencing. The drafter of the SRA, Kenneth Feinberg, said himself that the primary motivating factor was the concern over sentencing disparities.[47] Parole in the federal system was abolished entirely, and to provide the certainty and fairness that SRA proponents sought, sentences were to be based upon “articulate grounds.”[48] Courts were directed to “‘impose a sentence sufficient, but not greater than necessary, to comply with the purposes (of sentencing).’”[49] The statute enumerated four purposes of sentencing: (1) punishment, (2) deterrence, (3) incapacitation, and (4) rehabilitation.[50] However, the statutory text of the SRA provides no clear statement as to how these four purposes were to be reconciled with each other.

Not long after the passage of the SRA, Congress began to enact new mandatory minimum sentences.[51] From 1984 to 1990, Congress passed a number of mandatory minimums primarily aimed at drugs and violent crime.[52] Lawmakers argued that enacting mandatory penalties would deter crime by creating fixed and lengthy prison terms.[53] Less than ten years after passing many of the mandatory penalties, members of Congress familiar with criminal justice issues began to realize that these sentences were inconsistent with the objectives of the SRA.[54]

After the enactment of the SRA, the most infamous mandatory minimum law passed by Congress was the penalty relating to crack cocaine. Cocaine had long been illegal in America, and, as later happened with crack, powder cocaine’s prohibition had always carried a racial component.[55] Crack was a new method of packaging the drug, produced by heating a mixture of powder cocaine (cocaine hydrochloride), baking soda (sodium bicarbonate), and water. The chemical interaction between these ingredients creates what is commonly known as “crack”—a hard material similar to a rock.[56] Applying a hot flame will vaporize crack, and, through smoking, cocaine vapor can be inhaled into the lungs and can very quickly enter the bloodstream and go to the brain.

In June 1986, the country was shocked by the death of University of Maryland basketball star Len Bias in the midst of crack cocaine’s emergence in the drug culture. Bias, who was African American, died of a drug and alcohol overdose three days after being drafted by the Boston Celtics. Many in the media and public assumed that Bias died of a crack overdose.[58] Motivated in large part by the notion that the infiltration of crack cocaine was devastating America’s inner cities and by Bias’ death, Congress quickly passed the 1986 Anti-Drug Abuse Act (ADAA). Many in Congress believed that the existing sentences for drug crimes were inadequate to deal with the dangers of this new drug based on the enormous fear of crack. Although it was later revealed that Bias actually died of a powder cocaine overdose,[59] Congress had already passed the harsh, discriminatory crack cocaine law by the time the truth about Bias’ death was discovered.

Congress did not provide a clear record of the reasons for the sentencing disparity between minor crack infractions and serious powder offenses even though Congress intended to combat the crack cocaine “epidemic” through this legislation.[60] The Senate conducted only a single hearing on the 100 to one ratio, which only lasted a few hours and few hearings were held in the House on the enhanced penalties for crack offenses.[61] As a consequence of the ADAA’s expedited schedule, there was no committee report to document Congress’ intent in passing the ADAA or to analyze the legislation. The abbreviated legislative history of the ADAA does not provide a single consistently cited rationale for the crack powder penalty structure.

What little legislative history that does exist suggests that members of Congress believed that crack was more addictive than powder cocaine[66] and that it caused crime.[67] It also indicates members of Congress thought that crack cocaine caused psychosis and death, and that young people were particularly prone to becoming addicted to it,[68] as well as that crack’s low cost and ease of manufacture would lead to even more widespread use. Based on what ultimately turned out to be myths, Congress decided to punish crack more severely than powder.

Two years later, drug-related crimes were still on the rise. In response, Congress intensified its war against crack cocaine by passing the Omnibus Anti-Drug Abuse Act of 1988.[70] The 1988 Act created a five-year mandatory minimum and twenty-year maximum sentence for simple possession of five grams or more of crack cocaine.[71] The maximum penalty for simple possession of any amount of powder cocaine or any other drug remained at no more than one year in prison.

In the years after the enactment of the ADAA, many of the myths associated with crack cocaine have been dispelled. In 1996, a study published by the Journal of American Medical Association found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack.[72] In addition, the media stories that appeared in the late 1980s of crack-addicted mothers giving birth to “crack babies” are now considered greatly exaggerated.[73]

In the 1990s, federal sentencing policy for cocaine and crack offenses came under extensive scrutiny. These concerns led Congress in the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) to direct the Sentencing Commission to submit a report and recommendations to Congress on cocaine sentences.[74] On February 28, 1995, the Sentencing Commission unanimously recommended that changes be made to the cocaine sentencing structure including a reduction in the 100 to one ratio.[75] On May 1, 1995, the Sentencing Commission submitted to Congress proposed legislation and amendments to its sentencing guidelines, which would have equalized the penalties between crack and powder cocaine possession and distribution at the level of powder cocaine, and provided sentencing enhancements for violence or other harms.[76] On October 30, 1995, Congress rejected the proposed amendment to the sentencing guidelines and directed the Sentencing Commission to make further recommendations regarding the powder and crack cocaine statutes and guidelines that did not advocate parity.[77] For the first time in the guidelines’ history, Congress and the President rejected a guideline amendment approved by the Sentencing Commission.[78] Congress explicitly directed the Sentencing Commission that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine.”[79]

Again in 2002, the Sentencing Commission examined the disparity. The Sentencing Commission had hearings with a wide range of experts, who overwhelmingly concluded that there is no valid scientific or medical distinction between powder and crack cocaine.[83] Among those experts was Dr. Glen Hanson, then Acting Director of the National Institute on Drug Abuse, who testified before the Sentencing Commission, stating that, in terms of pharmacological effects, crack cocaine is no more harmful than powder cocaine. Dr. Alfred Blumstein, Professor of Urban Systems and Operations Research at Carnegie Mellon University, indicated that it would be more rational to use sentencing enhancements to punish individuals who use violence, regardless of the drug type, rather than to base sentencing disparities on the chemical itself. Such enhancements should also account for a person’s role in the drug trade. He also noted that the 100 to one drug quantity disparity suggests racial discrimination.[84]

After the 2002 hearings, the Sentencing Commission issued a new report on crack and powder cocaine disparities and once again found that the 100 to one ratio between the drugs was unjustified.[85] The Sentencing Commission made the following findings: (1) the current penalties exaggerate the relative harmfulness of crack cocaine, (2) the current penalties sweep too broadly and apply most often to lower level offenders, (3) the current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality, and (4) the current penalties’ severity mostly impacts minorities.[86]

Stephen Breyer, a current Supreme Court Justice, stated that: “[i]n 1994 Congress enacted a ‘safety-valve’ permitting relief from mandatory minimums for certain non-violent, first-time drug offenders. This, in my view, is a small, tentative step in the right direction. A more complete solution would be to abolish mandatory minimums altogether.”[90]

[these] mandatory minimum sentences are perhaps a good example of the law of unintended consequences. There is a respectable body of opinion which believes that these mandatory minimums impose unduly harsh punishment for first-time offenders. . . . [M]andatory minimums have also led to an inordinate increase in the prison population and will require huge expenditures to build new prison space . . . .[91]

In 2004, the Blakely v. Washington[92] decision laid the groundwork for the Court to address mandatory federal sentencing guidelines. Blakely pleaded guilty to the kidnapping of his estranged wife which under Washington state law would have resulted in a maximum sentence of fifty-three months. The judge in the case sentenced Blakely to ninety months because he had acted with “deliberate cruelty.”[93] The Court held an “exceptional” sentence increase under state law, based on the judge’s finding and not a jury’s, violated his Sixth Amendment right to trial by jury.[94] The Court ruled that, based on its decision in Apprendi v. New Jersey,[95] facts increasing the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.[96]

The next year, the Court was faced with a case involving a federal judge sentencing a defendant above the Guidelines in United States v. Booker.[97] The Court again held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, or even the ordinary sentencing range, must be submitted to a jury and proved beyond a reasonable doubt. As a result, the Court held that the Guidelines violated the Sixth Amendment’s right to trial by jury and declared that the Guidelines could not be mandatory.[98] Prior to Booker, the statute compelled sentencing courts to impose sentences within the Guidelines’ range, barring exceptional circumstances specific to the individual.[99] Trial judges could not account for instances when the Guidelines sentence for a specific offense failed to effectuate the broad sentencing goals articulated by Congress.[100] Bookerfundamentally altered the landscape of sentencing. The opinion in Booker struck from the federal sentencing statute the provision that mandated the imposition of sentences within the Guidelines.[101] While allowing sentencing courts to continue to make factual findings, the Booker opinion cured the statute of constitutional infirmity by declaring the Guidelines to be merely advisory. In 2007, the Court in Rita v. United States[102] reiterated that sentencing courts could no longer “presum[e] that the Guidelines sentence should apply.”[103] Rita emphasized that district courts must take the Guidelines into account when sentencing, even if they are no longer bound by them.[104]

The Booker decision was a reaction to a number of problems in the pre-Booker system. Noticeably, sentencing pre-Booker still encompassed many of the same problems the SRA set out to remedy—imbalance, consistency, and unfairness. While attempting to resolve inconsistency in sentencing, the SRA became too rigid. With respect to individual characteristics, the Guidelines significantly restricted judges’ ability to consider many aspects, such as a defendant’s age and family circumstances, and instead focused on a defendant’s criminal record as the most important characteristic.[105] As the former Chair of the Sentencing Commission, Judge William K. Sessions, argued that the Guidelines turned judges into computers, thereby taking away their humanity and reason.[106]

With the Booker decision, federal courts began to apply the Guidelines in an advisory manner to reduce some of the rigidity which some judges complained of. However, judges are only able to sentence people below statutory mandatory minimum sentences in limited circumstances.[107] In the wake of Booker, the Sentencing Commission continues to fulfill its role in developing guidelines, but judges no longer are required to follow the Guidelines. Under the advisory Guidelines system, sentencing courts are still tasked with consulting the Guidelines, but are not bound by them. The Guidelines still provide federal judges with fair and consistent sentencing ranges to consult at sentencing. The advisory Guidelines take into account both the seriousness of the criminal conduct and the defendant’s criminal record. Certain characteristics (including age and mental condition) “may be relevant” in granting a departure from the Guidelines range if “present to an unusual degree.”[108] The Sentencing Commission has also taken steps to encourage judges to consider human characteristics in sentencing.[109]

Now the next question was would the Sentencing Commission have the courage to apply the new amendment to those in prison, i.e. retroactively. In April 2008, the Sentencing Commission did just that by voting unanimously to apply the Crack -2 amendment retroactively.[116] As of June 2011, over 16,000 people were resentenced by federal judges across the country in accordance with the Guideline amendment.[117] The process of resentencing individuals based on the retroactive amendment was smoothly coordinated among the courts, probation officers, U.S. Attorneys’ offices, and the Federal Public Defenders. This was a critical moment in the reform movement in Washington to address one of the most unjust and discriminatory federal sentencing policies. Advocates had finally convinced an important branch of government to take steps to deal with the burgeoning federal prison population and the policies that were fueling it.

Another critical turning point in the movement to address mass incarceration at both the federal and state level was in 2008, when the Pew Center on States’ Public Safety Project (Pew) released its report, One in 100: Behind Bars in America 2008.[119] This groundbreaking report found for the first time in history that more than one in every 100 adults in America were in jail or prison.[120] The report also detailed how mass incarceration in this country impacted state budgets without increasing public safety.[121] Pew’s ability to crystalize the increasing reliance on incarceration in America with the easily understandable statistic of one in 100 got the attention of the public, advocates, and policymakers.

Furthermore, the report, while acknowledging the need to incarcerate violent and repeat offenders, notes that more people are behind bars principally because of a flood of policy choices such as the “three-strikes” and other sentencing laws that impose longer, often draconian prison sentences on people. Just as important to the argument of public safety, the report points out that prison growth and higher incarceration rates do not reflect a corresponding increase in crime or a surge in America’s overall population.[127]

The impact of Pew’s research on the necessity to address a criminal justice system that had grown out of control cannot be minimized. Being able to succinctly describe the consequences of many years of policies that have led to our country imprisoning 2.3 million people not only got the attention of policy experts, but also elected officials. Harsh punitive policies that many elected officials at the state and federal level created, supported, and built their political careers on began to come under fire as advocates and the public now had concrete evidence of the human and societal costs. Moreover, a Republican President who had begun to understand that because so many people were in prison and would eventually return to their communities across the country, real public safety required those returning home to be given a second chance to be productive citizens and succeed. The political and public mindset began to change regarding those who were incarcerated and the reasons why this country locked so many people up. In addition, the realities of the 2008 recession—that many states were left with few options but to cut the costs of incarceration and that reducing the money spent on jails and prisons did not result in an increase in crime or a decrease in public safety—was critical to states taking the lead on cutting prison populations. The United States had become an incarceration nation before our very eyes and a global leader in a category that it should not have been proud to be in.

In April 2008, Congress passed the bipartisan Second Chance Act, with the support of law enforcement, corrections, criminal justice and civil rights advocates, courts, and behavioral health experts, among others. This historic legislation was signed into law by President George W. Bush.[132] The SCA is the federal government’s investment in approaches to assisting people transitioning back to their communities and to reduce recidivism and corrections costs for state and local governments.[133] The 2008 bill authorized $165 million in federal grants to state, local, and tribal governments and nonprofit organizations to fund services and programs. The law not only improved the lives of people who are casualties of the criminal justice system but also represented a change in the conversation about the criminal justice system and society’s obligations to help formerly incarcerated people.

More than 840 grants have been awarded for reentry programming to nonprofit organizations and government agencies in forty-nine states, the District of Columbia, and U.S. territories as a result of SCA funding since 2009.[134] The National Reentry Resource Center estimates 164,000 people have benefited from services and programming funded by the SCA as of December 2017.[135] Services such as education, housing, employment training and assistance, substance use treatment, mentoring, victims support, and other services have been funded by the SCA to help people successfully leave jails and prisons. SCA grants also focus on improving corrections and supervision practices in order to reduce recidivism.[136]

On November 4, 2008, then-Senator Barack Obama won the election for President of the United States. During his campaign, President Obama considered criminal justice a priority issue. “Since my first campaign, I’ve talked about how, in too many cases, our criminal justice system ends up being a pipeline from underfunded, inadequate schools to overcrowded jails,”[137] Obama said in a speech at the NAACP convention in Philadelphia in 2015.

Also, it became clear in the first year of the Obama Administration that the DOJ, after years of supporting the 100 to one crack and powder cocaine disparity and other “tough on crime” policies, was reevaluating its position on the disparity. During a U.S. House of Representatives Committee on the Judiciary hearing entitled, Unfairness in Federal Cocaine Sentencing: Is It Time to Crack the 100 to 1 Disparity?, Assistant Attorney General Lanny Breuer testified:

Since the United States Sentencing Commission first reported 15 years ago on the differences in sentencing between crack and powder cocaine, a consensus has developed that the federal cocaine sentencing laws should be reassessed. Indeed, over the past 15 years, our understanding of crack and powder cocaine, their effects on the community, and the public safety imperatives surrounding all drug trafficking has evolved. That refined understanding, coupled with the need to ensure fundamental fairness in our sentencing laws, policy, and practice, necessitates a change. We think this change should be addressed in this Congress, and we know that many of you on this Committee have already introduced legislation to address the disparity between crack and powder cocaine. We look forward to working with you and other Members of Congress over the coming months to address this issue.[139]

After the enactment of the FSA 2010, Obama and his Administration continued to exercise a powerful voice in the efforts to reform this country’s criminal justice system and helped to jump start a national conversation about mass incarceration. On August 12, 2013, Attorney General Holder gave a speech to the American Bar Association (ABA) announcing critical reforms to the way the DOJ prosecuted and addressed drug crimes.[140] This speech was historic and long overdue. The remarks were prompted by the recognition that the federal government could not sustain a prison system that since 1980 had grown by almost 800%.[141] In 2012, on the federal, state, and local levels, it cost $80 billion to incarcerate 2.3 million people in this country.[142]

The 2013 Smart on Crime Initiative issued guidance to U.S Attorneys to stop automatically bringing charges that would impose mandatory minimum sentences, except in the most egregious cases.[143] Holder’s willingness to “rethink[] the notion of mandatory minimum sentences for drug-related crimes,” came as a welcome alternative to the status quo, which had been for the DOJ to ask for longer and harsher sentences.[144] Holder’s modification of the DOJ’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences” was a critical step toward creating a fairer and more just federal criminal justice system.[145] The Smart on Crime Initiative resulted in over 5,000 fewer individuals being sentenced to federal drug offense mandatory minimums and the percentage of people convicted of a drug offense carrying a mandatory minimum dropped to just 45.8% in 2015, the lowest proportion since 1993.[146]

Obama continued to seriously focus on criminal justice as an important part of his legacy in 2016 when, during his State of the Union Address, he called on Congress to “work together this year on some bipartisan priorities like criminal justice reform,” a reference to his support for the Sentencing Reform and Corrections Act.[149] Later that year, he gave his first major criminal justice speech in July at the NAACP annual convention to a crowd of more than 3,000, where he made his case for criminal justice reform:[150]

And the studies show that up to a certain point, tougher prosecutors and stiffer sentences for these violent offenders contributed to the decline in violent crime over the last few decades. Although the science also indicates that you get a point of diminishing returns. But it is important for us to recognize that violence in our communities is serious and that historically, in fact, the African American community oftentimes was under-policed rather than over-policed. Folks were very interested in containing the African American community so it couldn’t leave segregated areas, but within those areas there wasn’t enough police presence.

And then, of course, there are costs that can’t be measured in dollars and cents. Because the statistics on who gets incarcerated show that by a wide margin, it disproportionately impacts communities of color. African Americans and Latinos make up 30 percent of our population; they make up 60 percent of our inmates. About one in every 35 African American men, one in every 88 Latino men is serving time right now. Among white men, that number is one in 214.

What is that doing to our communities? What’s that doing to those children? Our nation is being robbed of men and women who could be workers and taxpayers, could be more actively involved in their children’s lives, could be role models, could be community leaders, and right now they’re locked up for a non-violent offense.

The day after the NAACP speech, Obama became the first sitting President to visit a federal prison. He went to the El Reno Federal Correctional Institution in Oklahoma with the purpose of:

After years of advocates pushing the President to commute more sentences, on December 19, 2013, the President granted eight commutations to people who were convicted of federal crack cocaine offenses, and six of the individuals had life without parole sentences.[158] This group of commutes became known as the Obama Eight and this was the first signal to advocates that the President was willing to use his clemency power to fulfill his legacy. He also pardoned thirteen individuals on that date.[159]

On August 3, 2010, President Obama signed the FSA 2010 into law, which reduced the triggers for the five-year mandatory minimum from five grams of crack cocaine to twenty-eight, and for the ten-year from fifty grams to 280 grams. The FSA 2010 represented a crucial step toward fairness in federal sentencing as opposed to the political and punitive nature of past sentencing policies. Although the FSA 2010 was a step toward fairness, the eighteen to one ratio was a compromise and it still reflects outdated and discredited assumptions about crack cocaine. Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is one to one.

After the FSA 2010 was enacted, the question became: would the new law apply to people who were convicted before the bill was signed into law but sentenced after it became law. The U.S. Supreme Court decided in Dorsey v. United States[169] in a 5-4 decision that the FSA 2010’s lower minimum sentences applied to individuals sentenced after the FSA 2010 became law, even for offenses committed before the law’s passage. The Court concluded that Congress intended for the sentencing guidelines to apply to people convicted before the bill passed. Given that the FSA 2010 was intended to create uniformity and proportionality in sentencing, that goal would be undermined by applying old sentencing guidelines after the legislation was enacted.[170]

More than the enactment of the FSA 2010, the Sentencing Commission has played a critical role in the success of criminal justice reform on the federal level. As mentioned above, after years of reeling from Congress’s rejection of its 1995 recommendation to reduce the crack and powder cocaine disparity,[171] the Sentencing Commission, in 2007, used its authority to address how it had contributed to the sentencing disparity between the two drugs.[172]

After the FSA 2010 was passed, the Commission was required to change the Guidelines to be consistent with the new law and decide as they did in 2007 whether to apply the new Guidelines retroactively. After requesting public comment on retroactivity of the Guidelines, the Sentencing Commission received over 43,500 comments and the overwhelming majority were supportive of retroactivity. Members of Congress, the federal judiciary, and the DOJ all weighed in on the Sentencing Commission’s decision to apply FSA 2010 guidelines retroactively. In June 2011, the Sentencing Commission held a hearing and heard from twenty advocates and experts about the effects of applying the Guidelines retroactively.[173]

With significant public support, many years of research on federal cocaine sentencing, including four research reports to Congress, numerous appearances before Congress, and various Commission hearings on federal cocaine sentencing policy, the Commission decided to apply the new sentencing Guidelines retroactively. The Sentencing Commission Chair, Judge Patti B. Saris, stated:

Today’s action by the Commission ensures that the longstanding injustice recognized by Congress is remedied, and that federal crack cocaine offenders who meet certain criteria established by the Commission and considered by the courts may have their sentences reduced to a level consistent with the Fair Sentencing Act of 2010.[174]

This decision ensured that over 12,000 people—eighty-five percent of whom were African Americans—had the opportunity to have their sentences for crack cocaine offenses reviewed by a federal judge and possibly reduced. The Sentencing Commission worked with the Administrative Office of the Courts to recreate a process similar to that in 2007 for resentencing people with crack cocaine convictions. The process required a federal judge to determine whether a person is eligible for a reduced sentence and how much their sentence would be reduced. Federal judges were required to consider, among other factors, whether the individual “would pose a risk to public safety.”[175]

The Sentencing Commission made it clear that not every person with a crack cocaine conviction would be eligible for a lower sentence under the new Guidelines.[176] However, the overall impact was that the average sentence for a person with a crack cocaine offense remained about ten years and individuals received an average of approximately a thirty-month sentence reduction.[177] The BOP was estimated to save over $200 million within the first five years after retroactivity of FSA 2010.[178]

As of December 2014, 7,748 motions for retroactive resentencing were granted and 6,242 were denied.[179] Most individuals whose motions for resentencing were denied were not denied on the merits but were simply ineligible for resentencing for various reasons.[180] Although the retroactive application of the Sentencing Commission guideline amendment resulted in thousands of people being resentenced and released from federal prison, the Sentencing Commission took the opportunity to reiterate that only Congress could make the statute retroactive.[181]

Advocates began to see the policy change actually resulting in people being released from federal prison. One such person is the story of Hamedah Hasan, whose case haunted her judge, Judge Richard G. Kopf, for years after he sentenced her. In 2008, he got the chance to reduce her life sentence to twenty-seven years and ultimately in 2012 he sent her home to raise her daughters and grandchildren. Here’s Hamedah’s story:

After the successful reduction of sentencing guidelines for drugs in 2007 and 2011, the Sentencing Commission asked the public to comment on the possibility of lowering the sentencing guidelines for drugs by two levels during its process for deciding on the Sentencing Commission’s annual priorities.[184] At a time when the federal prison population was more than 214,000 and approximately thirty-two percent over capacity, the Sentencing Commission used its authority to address the overcrowded conditions in federal prisons across the country.[185] In April 2014, the Sentencing Commission voted to reduce the Guidelines for most individuals convicted of federal drug trafficking by two guideline levels. After receiving more than 20,000 public comments, including letters from members of Congress, judges, advocacy organizations, and individuals, the Sentencing Commission used its statutory authority and voted unanimously to apply the new sentencing guideline amendment, also known as Drugs -2, retroactively.[186] Judge Patti B. Saris, Chair of the Sentencing Commission said: “This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner. . . . Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”[187]

The Sentencing Commission estimated that the Drugs -2 amendment would lower the federal prison population by more than 6,500 over five years and have an even greater long-term effect. Approximately seventy percent of people with federal drug trafficking convictions qualified for the change, according to the Sentencing Commission. In addition, over 46,000 individuals would be eligible to have their cases reviewed by a judge to determine if they should be resentenced.[188] If a judge granted an individual’s motion for a sentencing reduction, their sentence could be reduced by an average of twenty-five months, or 18.8%.[189] Even after possible sentence reductions, individuals convicted of a drug offense would still on average serve 108 months.[190] In the long run, retroactive application of this guideline amendment would result in a savings of 79,740 bed years.[191] According to an August 2018 report by the Sentencing Commission, 31,381 individuals’ motions for sentence reduction were granted as a result of the Drugs -2 amendment and 18,530 were denied.[192] As in 2011, most of those motions that were denied did not qualify for the sentencing reduction on the merits.

In 2014, Senate Bill 1410, the Smarter Sentencing Act (SSA) was introduced by Senators Richard Durbin (D-IL), Mike Lee (R-UT) and Patrick Leahy (D-VT).[193] The bill did not repeal mandatory minimum drug sentences, but reduced the five, ten, and twenty-year mandatory sentences to two, five, and ten years for certain drug offenses.[194] The bill also very narrowly expanded the “safety valve” exception, so that a judge could decide whether people convicted of low-level drug offenses with little criminal history should receive a mandatory sentence.[195] Finally, the SSA would have allowed over 8,000 (at the time) federal prisoners (eighty-seven percent of whom are black) who were serving sentences for crack cocaine offenses to be resentenced consistent with the FSA 2010.[196]

In January 2014, the SSA was voted out of the Senate Judiciary Committee with the support of three Republican Senators: Mike Lee, Ted Cruz (R-TX), and Jeff Flake (R-AZ). However, several key Republican senators did not vote for the bill including Senators Charles Grassley, Jeff Sessions, and John Cornyn. Senator Grassley spoke out several times on the Senate floor about his opposition to the SSA and sentencing reform in general. Criminal justice and civil rights advocacy groups, such as the ACLU, LCCHR, The Sentencing Project, the DPA, Brennan Center for Justice, FAMM, Human Rights Watch, United Methodist General Board of Church and Society, and others in faith-based organizations, spent a significant amount of time supporting efforts to pass this legislation as an incremental step to address the serious mass incarceration problem on the federal level.

After supporters of the SSA were not able to convince Democratic Senate leaders to bring the bill up for a vote in the 113th Congress, Senate Judiciary members agreed to come together and negotiate criminal justice reform language that Senators Charles Grassley and Dick Durbin introduced as S. 2123, the Sentencing Reform and Corrections Act of 2015 (SRCA).[197] The SRCA was introduced in October 2015 and a similar H.R. 3713,[198] the Sentencing Reform Act (SRA 2015), with provisions similar to the sentencing sections of SRCA, was introduced shortly thereafter. Both bills would address the “three-strike” penalty which mandated life sentences for certain individuals who had two prior drug felonies and would reduce to the term to twenty-five years. A similar provision which mandated twenty-year sentences for individuals with a prior drug felony would have been reduced to fifteen years.[199] SRA 2015 and SRCA would have given judges more discretion to sentence below prescribed mandatory minimums by the expansion of the existing “safety valve” and new authority to depart from certain mandatory minimums, and would have retroactively applied the statutory changes of the FSA 2010 to those in prison.[200] In addition, SRCA included additional mandatory minimum sentences for certain arms export control crimes and interstate domestic violence offenses that result in death.

The original versions of the SRCA and SRA 2015 would have addressed an inconsistency in sentences under the Armed Career Criminal Act (ACCA)[201], amending 18 U.S.C. § 924(c) to prohibit “stacking” or consecutive sentences for gun charges stemming from one incident committed during a drug crime or crime of violence.[202] SRCA was voted out of Senate Judiciary by a fifteen to five vote, with five Republicans voting against the bill (Senators Sessions (R-AL) Vitter (R-LA), Hatch (R-UT), Perdue (R-GA), and Cruz (R-TX)). Also, title II of the SRCA had provisions that were similar to Senate Bill 467, the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System Act of 2015, which would allow people to serve the end of their prison sentence in halfway houses or home confinement, if they participate in reentry and rehabilitation programs. Furthermore, the reforms proposed in the SRCA and the SRA 2015 to the federal mandatory minimum sentencing scheme represent an acknowledgement by both political parties that the draconian sentencing approaches of the past have failed to achieve the results intended.

The 114th Congress ended with the election of Donald Trump as President of the United States and for many the end of any hope that criminal justice reform would be enacted over the next four years. Trump ran on a platform of “law and order” and maligning immigrants, so reforms to federal sentencing policy for criminal justice advocates both progressive and conservative became a distant possibility.

However, Jared Kushner, Donald Trump’s son-in-law and White House advisor, took an interest in supporting reform efforts. Kushner’s father, Charles Kushner, had been convicted of illegal campaign contributions, tax evasion, and witness tampering and served fourteen months in federal prison.[203] As a result of his first-hand experience with the federal prison system, the younger Kushner became interested in criminal justice reform efforts. After first reaching out to Republican and Democratic Congressional members and conservative organizations, and later opening up a dialogue with other groups, Kushner concluded the best chance to achieve reform would be to focus on prison or “back end” reform, but not sentencing reform. President Trump even mentioned his support for prison reform in the State of the Union Address in 2018.[204]

Later, Kushner took his case for prison reform as a vehicle to pass criminal justice reform to a number of bipartisan members of the Hou