A generational shift for federal drug sentences.

• Author: Saris, Patti B.

It has been a generation since the laws governing federal drug sentences were put into place. Since the 1980s, our society, our attitudes, and our criminal justice system have evolved. The Supreme Court case law, the statutes and United States Sentencing Guidelines ("Guidelines"), and the realities on the ground have changed significantly. With the benefit of experience and new thought, many are considering whether a change--a generational shift--in our approach to federal drug sentences is appropriate.

I have had the privilege of serving as a federal district court judge for twenty years now and over that time have gained a greater understanding of the federal criminal justice system. The past three years serving as chair of the United States Sentencing Commission have provided me with an opportunity to understand better the impact of the sentencing laws in the federal system. I have appreciated being part of this discussion as chair of the Commission at a time when we as a society have returned to the debate on sentencing policies from a very different perspective than we had a generation ago.

This article focuses on policies regarding drug offenders and drug penalties as one means to effect change in the federal prison populations and costs. Drug offenders make up about a third of the offenders sentenced federally every year and a majority of the prisoners serving in the federal Bureau of Prisons, (1) so they are in many ways the key to the size and nature of the federal prison population. This article has four parts: Part I explores the history of the current mandatory minimum drug penalties, the Sentencing Commission, and the federal drug sentencing guidelines; Part II examines criminal justice system shifts over the past thirty years; Part III identifies what changes can be made by Congress and elsewhere to address the burgeoning federal prison population; and Part IV explains the Commission's significant amendments in 2014 to reduce drug guideline sentences.

1. History

   The United States Sentencing Commission was created as an independent bipartisan Commission within the judiciary thirty years ago to eliminate unwarranted disparities (2) in federal sentencing. (3) Previously, judges had almost unlimited discretion to sentence defendants as they saw fit. (4) That meant that two similarly situated defendants who had committed the same crime might receive very different sentences depending on what district they were in or what judge they were before. (5) The Sentencing Commission was tasked with developing proportionate sentencing guidelines assigning sentencing ranges based on an offender's conduct and criminal history. (6) Thirty years later, the Commission continues to amend the Guidelines as new laws are passed, as circumstances change, and as we learn more about what sentences work best and are most appropriate.

   1. Drug Sentences in Statutes and the Guidelines

      The laws and Guidelines governing federal drug sentencing were put into place in the late 1980s and early 1990s. We have now had a generation to study the effects of these laws and policies. In the 1980s, rates of violent crime in America, particularly in cities, were high, and the public saw increasing drug use and the drug trade as major contributors to the violence. High profile tragedies, most notably the death from a cocaine overdose of Len Bias, a University of Maryland basketball star and the first draft pick of the Boston Celtics, convinced many on both sides of the aisle in Congress that America faced a drug crisis. (7) There was a sense that our communities were veering out of control, and new approaches were needed. Congress passed, quickly and with overwhelming bipartisan support, the Anti-Drug Abuse Act of 1986, (8) which imposed new, harsh mandatory minimum penalties for drug trafficking--essentially the statutory penalty scheme we still have today. (9)

      Floor statements delivered by members in support of the 1986 Act and a committee report on a predecessor bill suggest that Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. (10) Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called "serious" traffickers and the ten-year mandatory minimum penalties to "major" traffickers. Drug quantity would serve as a proxy for identifying the type of trafficker. (11) There was a sense that efforts toward rehabilitation of offenders had failed and that harsh punishments were needed. (12)

      At the same time, the Sentencing Commission, pursuant to the Sentencing Reform Act of 1984 ("SRA"), was putting together the initial sentencing guidelines. (13) The SRA responded to an emerging consensus that the pre-Guidelines federal sentencing system resulted in such "glaring disparities" that it was in need of major reform. (14) Prior to the SRA, judges possessed almost unlimited and unguided authority to fashion an appropriate sentence. (15) Criminal statutes set broad ranges of minimum and maximum punishments. As a result, each judge was left to decide "the various goals of sentencing, the relevant aggravating and mitigating circumstances, and the way in which those factors would be combined in determining a specific sentence." (16) Neither party had any meaningful right of appellate review because sentences were limited only by statutory minimums and maximums. (17)

      Studies at the time revealed that judges at different ends of the spectrum held widely divergent views on the purposes of sentencing, with some judges emphasizing rehabilitation and others emphasizing "just deserts." (18) Average sentences varied across the nation for many federal offenses, sometimes by a number of years. (19) Sentencing prior to the SRA also lacked transparency and certainty. No statute required judges to explain the time defendants would actually serve in prison. (20) Instead, after the defendant began serving the sentence, the United States Parole Commission decided when the defendant would be released based largely on its judgment about when an offender's rehabilitation was complete. (21)

   2. Drug Mandatory Minimums and the Guidelines

      In the SRA, Congress charged the Commission with promulgating guidelines that are "consistent with all pertinent provisions" of federal law (22) and with providing sentencing ranges that are "consistent with all pertinent provisions of title 18, United States Code." (23) To that end, the original Commission incorporated mandatory minimum penalties into the Guidelines at their inception. (24)

      The Commission has adjusted its approach to setting guidelines and to incorporating mandatory minimum penalties over time, with the benefit of the Commission's "continuing research, experience, and analysis." (25) Historically, the Commission established guideline ranges slightly above mandatory minimum penalties by setting a base offense level for Criminal History Category I offenders (26) that corresponds to the first guideline range on the sentencing table with a minimum guideline range in excess of the mandatory minimum. Therefore, the base offense level, before any enhancements, adjustments, or consideration of criminal history, produces a guideline range that is slightly above the applicable mandatory minimum penalty. The Commission originally set the base offense levels at guideline ranges slightly higher than the mandatory minimum levels to permit some downward adjustments for defendants who plead guilty or otherwise cooperate with authorities. (27)

      The drug guidelines incorporated the statutory mandatory minimum penalties for drug offenses initially in exactly this way. The Drug Quantity Table for drug offenses at [section] 2D1.1 continued to be structured this way until November 1, 2014. (28) The November 2014 changes will be discussed infra.

      The statutes applicable to drug trafficking offenses carry mandatory minimum penalties, usually five or ten years in length, based on the type and quantity of drugs involved in the offense. Similarly, the Drug Quantity Table at [section] 2D 1.1(c) of the Guidelines establishes base offense levels for drug trafficking offenders using the quantity and type of drugs involved in the offense. (29) The Commission developed the initial Drug Quantity Table to ensure that the quantities triggering a mandatory minimum penalty carry a base offense level equal to the first range on the sentencing table that exceeds the mandatory minimum (i.e., levels 26 and 32, respectively, for the commonly applied five- and ten-year mandatory minimums).

      The Guidelines range for more serious drug offenders can be increased based on a variety of factors besides drug quantity, including possession of a weapon, use of violence, an aggravating role in the offense, and the offender's criminal history. Factors like acceptance of responsibility and a mitigating role in the offense (for example, for mules and couriers) can reduce an offender's guideline range. Cooperation with the government, or meeting certain "safety valve" (30) requirements as a low-level nonviolent offender can now lead to a sentence below the mandatory minimum penalty for some offenders.

   3. Continued Importance of Commission Post-Booker

      In 2005, the Supreme Court's two-part decision in United States v. Booker began yet another era of federal sentencing by rendering the Guidelines "effectively advisory." (31) Nonetheless, the Commission and the Guidelines continue to be "the lodestone of sentencing," as the Supreme Court wrote last year. (32) While there has been a significant increase in the number of offenders sentenced below the guideline range through both government-sponsored and non-government-sponsored departures and variances, the Guidelines continue to serve as an anchor with a significant impact on the sentences given. (33) The Commission continues to promulgate sentencing guidelines that courts must properly determine and consider in all federal criminal...