We Can Keep on Dreaming.

March 31, 2015
By Hanging Out with Carl Gunn




  • The Smarter Sentencing Act, which would cut drug mandatory minimum sentences in half, has been reintroduced in this year’s Congress.
  • There’s also a bill named the “Justice Safety Valve Act,” which would allow a court to sentence below a mandatory minimum sentence whenever it’s “necessary to do so in order to avoid violating the requirements of 18 U.S.C. § 3553(a).”
  • Think about using the Smarter Sentencing Act even if it doesn’t get passed, to argue for policy disagreement variances in drug cases.



Last year, I put up a post about some potential sentencing policy changes on all three government fronts – Sentencing Commission, Congress, and Executive – and wondered if we might actually see some real relief.  (See “Is There Some More Real Change Going to Happen Out There?” in the January 2014 link at the right.)  There was a policy memorandum put out by the Attorney General directing more limited charging of mandatory minimum quantities and prior conviction enhancements, a proposed guideline amendment reducing drug base offense levels by 2 levels across the board, and, perhaps most exciting of all, a bill introduced in Congress named the “Smarter Sentencing Act” which would have cut statutory mandatory minimums in half.  And the bill in Congress was expressly supported by the Sentencing Commission, as noted in my post last year.

As you all presumably know, two of the three policy changes actually took effect.  The guideline amendment is in place, effective November 1, 2014, and the Attorney General charging policies had already been created, though I’m not clear on how readily they’re being implemented by line AUSA’s.  (If any of you have comments and/or experiences you want to share on that, feel free to share them by clicking on the “Read More” or “Comment” option at the bottom of this post.)  The statutory amendments proposed in the Smarter Sentencing Act unfortunately didn’t take effect, however, so we’re left with harsh statutory mandatory minimums that even many members of Congress – perhaps even a majority, if we attribute the bill’s failure to legislative inertia more than lack of support – think are too harsh.

Still, hope springs eternal, or, to track the title of this post, we can keep on dreaming.  A comparable bill, linked here, was introduced in this year’s Congress, named the “Smarter Sentencing Act of 2015.”  It’s like last year’s bill, except that it would limit the reduced minimums in importation cases to “couriers,” which are defined to be defendants “whose role in the offense was limited to transporting or storing drugs or money.”  Like last year’s bill, it has bipartisan support from both ends of the political spectrum, including not just Democrats like Senators Leahy and Durbin, but Republicans like Rand Paul and Ted Cruz.  There’s also another sentencing bill, named the “Justice Safety Valve Act of 2015.” which is linked here. That bill would add a subsection (g) to 18 U.S.C. § 3553 allowing a court to impose a sentence below a statutory mandatory minimum without finding any of the present safety valve requirements, whenever “the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).”  In other words, a court can go below the mandatory minimum whenever it’s required by what we’ve started calling the “3553(a) factors” and/or the “parsimony principle,” United States v. Chavez, 611 F.3d 1006, 1010 (9th Cir. 2010).

Of course, it may be just dreaming to think this bill will pass.  On the other hand, it does have support from both sides, and it’s not just the interests of our clients that the bill advances.  The bill also has significant budgetary implications that advance the interests of all taxpayers, as noted in the Senator Paul press release linked here.  One of the interesting facts noted in this press release is that correctional spending now accounts for almost a third of the Department of Justice’s budget.

Even if the Smarter Sentencing Act again doesn’t get passed, think about how and whether you can use this for Booker variance arguments.  What’s suggested by the bill – and directly expressed by the Congresspersons and Senators supporting it – is that far lower sentences will reflect the seriousness of the offense, promote respect for the law, and provide just punishment, to track the language of 18 U.S.C. 3553(a)(2)(A).  It’s not just that the drug mandatory minimums and the guidelines tied to them aren’t the product of any empirical research or analysis.  (See the last paragraph of my post from last year – and all the times you’ve perhaps argued it yourself in deconstructing the guidelines, as discussed in my past posts on that topic (and for the point that this is what guidelines are supposed to be based on, see the post entitled “Deconstruction and Reconstruction of the Sentencing Guidelines: Part 1” in the November 2013 link at the right and the posts following it).)  It’s that even present day legislators – from all points along the political spectrum – don’t think present drug sentences are a good idea.  Think about making this point as a reason why your judge should decline to follow the drug guidelines.  The judge can decide that he or she simply disagrees with the present drug sentencing structure on a policy basis – like a multitude of respected legislators.  (For authority that such a policy disagreement can be enough, see the opinions of none other than the Supreme Court in Spears v. United States, 555 U.S. 261, 265-66 (2009) and Pepper v. United States, 131 S. Ct. 1229, 1247 (2011).)

So step out there and use this bill even if it isn’t passed.  And write your Congressperson or Senator if you’re so inclined.