House Judiciary Committee Issues Report on Sentencing Reform Act

Targeted News Service

WASHINGTON, Dec. 31 -- The House Judiciary Committee issued a report (H.Rpt. 114-888) on legislation (H.R. 3713) to reform sentencing laws. The report was advanced by Rep. Bob Goodlatte, R-Va., on Dec. 23.

Excerpts of the report follow:

Purpose and Summary

H.R. 3713, the "Sentencing Reform Act of 2015," amends title 18, U.S. Code (the Federal Criminal Code), in several ways. First, it reforms mandatory minimum sentences for certain Federal drug offences. Second, it broadens the existing "safety valve" and creates a new, narrowly tailored safety valve for certain drug offenders. Third, it reforms sentences for certain firearms offenses. Finally, it applies the provisions of the Fair Sentencing Act of 20101 retroactively.

1Pub. L. No. 111-220 (August 3, 2010).

Background and Need for the Legislation

In early 2015, Chairman Goodlatte and Ranking Members Conyers created a Criminal Justice Reform Initiative at the Judiciary Committee to address the significant Congressional interest in criminal justice reform from Members who do and do not serve on the Committee. The purpose of the Initiative is to develop bipartisan legislation to address several facets of the Federal criminal justice system, including over-criminalization, sentencing reform, forensics reform, mentally ill offender reform, prison and reentry reform, protecting citizens through improved criminal procedures and policing strategies, and civil asset forfeiture reform. In addressing these issues, the Committee has relied on the work of the Over- Criminalization Task Force, which held nine hearings on a variety of criminal justice topics during the 113th Congress, as well as the information provided to the Committee by interested Members during the Committee's formal listening session in June 2015.

The first topic the Committee addressed as part of the Initiative was sentencing reform. H.R. 3713, as reported from Committee, makes several targeted, surgical changes to Federal sentencing law to: (1) reform mandatory minimum sentences for certain Federal drug offenses; (2) broaden the existing "safety valve" and create a new, narrowly tailored safety valve for certain drug offenders; (3) reform sentences for certain firearms offenses; and (4) apply the Fair Sentencing Act of 2010 retroactively.

Senate Judiciary Committee Chairman Grassley introduced a similar bill--S. 2123, the Sentencing Reform and Corrections Act--on October 1, 2015. However, H.R. 3713 differs from S. 2123 in several significant respects.

First, H.R. 3713 is purely a sentencing reform bill. It does not contain either the prison reform or the over-criminalization provisions in S. 2123.

Second, H.R. 3713 does not apply full retroactivity to the statutory changes. The bill provides for retroactive application of many of the statutory sentencing changes but, unlike the Senate bill (or the Sentencing Commission's Amendment 782), H.R. 3713 excludes inmates who have been convicted of serious violent felonies from retroactivity. This means that those inmates will be required to serve their full term of incarceration.

Third, H.R. 3713 does not establish two new mandatory minimum sentences, but it does contain a sentencing enhancement for fentanyl. Fentanyl, a powerful narcotic pain medication 80 to 100 times more potent than morphine, has led to a rash of deaths across the country. In early 2015, the Drug Enforcement Administration issued a nationwide alert about the threat posed by fentanyl.2 H.R. 3713 imposes a 5-year mandatory maximum sentencing enhancement for trafficking in heroin "cut" with fentanyl, or trafficking in fentanyl represented as heroin. The enhancement must run consecutively to the underlying sentence.

2"DEA Issues Nationwide Alert on Fentanyl as Threat to Health and Public Safety," March 18, 2015, available at https://www.dea.gov/ divisions/hq/2015/hq031815.shtml.

Finally, H.R. 3713 provides for retroactivity under the Fair Sentencing Act of 2010 ("FSA"). The FSA addressed the "crack/powder" disparity by raising the quantities of crack required to trigger the 5 and 10-year mandatory minimum sentences. In 2011, the Sentencing Commission promulgated an amendment that applied the FSA retroactively.3 However, the amendment did not allow for reductions below the mandatory minimum sentence. The effect of that is that offenders who received sentences just above the mandatory minimum because they had very little aggravating conduct, did not receive as much of a reduction as they could have; while offenders who received sentences well above the mandatory minimum potentially received a much larger reduction. H.R. 3713 does not provide full retroactivity for these crack offenders, but limits retroactivity to offenders who received a reduction to the mandatory minimum sentence, and offenders who did not receive a reduction because they were ineligible (because they were sentenced to the mandatory minimum and did not receive any additional time). It excludes offenders who received a reduction to a term above the mandatory minimum, and offenders whose prior motions for reduction in sentence were denied because the offender was deemed a danger to public safety, or because of the offender's post-sentencing conduct.

3See United States Sentencing Commission, "FREQUENTLY ASKED QUESTIONS: 2011 RETROACTIVE CRACK COCAINE GUIDELINE AMENDMENT," available at http://www.ussc.gov/policymaking/amendments/frequently- asked-questions-2011-retroactive-crack- cocaine-guideline-amendment.

Hearings

The Committee on the Judiciary held no hearings on H.R. 3713. However, from June 2013 to August 2014, the Committee's Over-Criminalization Task Force held multiple hearings on criminal justice issues, including a hearing on the penalties associated with a Federal criminal conviction on Friday, May 30, 2014.

Committee Consideration

On November 18, 2015, the Committee met in open session and ordered the bill H.R. 3713 favorably reported, with an amendment, by voice vote, a quorum being present.

Committee Votes

In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee advises that there were no recorded votes during the Committee's consideration of H.R. 3713.

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee advises that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 3713, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:

U.S. Congress,

Congressional Budget Office,

Washington, DC, May 18, 2016.

Hon. Bob Goodlatte, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

Dear Mr. Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3713, the "Sentencing Reform Act of 2015."

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Marin Burnett, who can be reached at 226-2860.

Sincerely,

Keith Hall,

Director.

Enclosure

cc:

Honorable John Conyers, Jr.

Ranking Member

H.R. 3713--Sentencing Reform Act of 2015.

As ordered reported by the House Committee on the Judiciary on November 18, 2015.

SUMMARY

H.R. 3713 would amend Federal law to change the prison sentences associated with certain offenses. Based on information provided by the Department of Justice (DOJ) and the U.S. Sentencing Commission (USSC), CBO estimates that implementing the legislation would reduce the cost of incarcerating offenders and would lead to a reduction in discretionary costs to DOJ of $338 million over the 2017-2021 period and $769 million over the 2017-2026 period, assuming future appropriation actions consistent with the projected reduction in prison population.

CBO estimates that enacting H.R. 3713 would result in the release of thousands of prisoners from Federal prisons earlier than would occur under current law. CBO expects that upon release many of those individuals would receive Federal benefits from a variety of Federal programs including Medicare, Medicaid, and health insurance marketplaces; Social Security; Supplemental Security Income (SSI); and the Supplemental Nutrition Assistance Program (SNAP). As a result, CBO and staff of the Joint Committee on Taxation (JCT) estimate that enacting the legislation would increase direct spending by $259 million and reduce revenues by $8 million over the 2017-2026 period. Pay-as-you-go procedures apply to this legislation because it would affect direct spending and revenues.

CBO estimates that enacting H.R. 3713 would not increase net direct spending or on-budget deficits by more than $5 billion in any of the four consecutive 10-year periods beginning in 2027.

H.R. 3713 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA).

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary effects of H.R. 3713 are shown in Table 1. The spending effects of this legislation fall within budget functions 550 (health), 570 (Medicare), 600 (income security), 650 (Social Security), and 750 (administration of justice).

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BASIS OF ESTIMATE

For this estimate, CBO assumes that H.R. 3713 will be enacted near the end of 2016 and that future appropriations will be reduced consistent with the anticipated reductions in prison population stemming from modified sentencing requirements specified in the bill.

The USSC guidelines differentiate the seriousness of offenses into 43 levels--the more serious the crime, the higher the offense level and the higher the potential sentence for conviction. On July 18, 2014, the USSC voted unanimously to apply Amendment 728. That amendment, sometimes referred to as "Drugs Minus Two," adjusted sentencing guidelines to lower the sentencing levels for certain drug-related offenses. That amendment took effect on November 1, 2015, and because it was applied retroactively, it provides for the early release of thousands of inmates. The "Drugs Minus Two" amendment will affect all drug sentencing, including sentences that would be affected under H.R. 3713.

H.R. 3713 would amend current law to further reduce prison sentences for certain offenses. The legislation would change the manner in which sentences for particular crimes are calculated and determined. As a result, in qualifying cases, the sentencing court would be required to use the new guidelines provided by this legislation when calculating an appropriate sentence.

Under the bill, some provisions could be applied retroactively. The new calculations would be applied to both new cases (lowering potential initial sentences) and to old ones (recalculating sentences in cases that would qualify for reconsideration). In cases where a provision could be applied retroactively, an inmate may petition the court for a new sentence that would follow the adjusted sentencing guidelines. The resulting sentence could make an existing inmate eligible for immediate or early release. Because the changes in sentencing calculations would result in the early release of many existing inmates and shorten sentences for those newly convicted, CBO expects that implementing the bill would reduce the number of individuals in Federal prisons relative to current law.

By reducing the population of individuals in Federal prisons, CBO expects that H.R. 3713 would reduce DOJ's discretionary costs to operate the Federal prison systems, which are subject to appropriation. We also expect the legislation would increase mandatory spending for entitlement programs. Individuals released earlier than they would be under current law could be eligible for different entitlement programs, such as Medicare, Medicaid, and Social Security, if they meet the criteria for those programs. (Generally, prisoners are not eligible for entitlement programs while they are incarcerated.)

CBO expects that under current law the number of individuals receiving sentences for offenses that would be affected by the legislation would remain at roughly the levels observed in recent years. The potential shift in the length of mandatory minimum sentences may have an affect on the behavior of prosecutors in those types of cases going forward but CBO cannot quantify those effects.

Costs and savings under the bill were calculated using "person-years," which were derived from the number of inmates estimated to be eligible for release in each year. When a person is released from prison early, the prison space that would have been occupied by that inmate (and its associated costs) would be "reduced" in that year and all other years that they otherwise would have been incarcerated. The average cost to BOP per person-year changes with inflation, but is estimated to average about $13,000 over the 2017-2026 period. The budgetary effects of the various provisions of the bill would depend on the pace at which inmates would be released during that period.

Changes in Spending Subject to Appropriation

CBO estimates that implementing H.R. 3713 would reduce prison costs by $338 million over the 2017-2021 period and $769 million over the next 10 years (see Table 2). Those savings would stem primarily from reduced spending for prisoners' medical expenses and food as well as for utility expenses. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

CBO estimates that H.R. 3713 would reduce the prison population relative to current law, which would reduce costs for operating the prison system. However, CBO does not expect there would be any savings from reductions in staffing because the Federal prison population currently exceeds its capacity. As the prison population decreases, the rate of hiring new staff for the corrections system could slow depending on DOJ's decisions about the desired ratio of inmates to staff. If DOJ elected to maintain the existing ratio of inmates to staff, then cost reductions under the bill would be greater as fewer staff would be needed to oversee a smaller prison population. If DOJ kept current staff levels constant, little or no reductions in staff costs would be realized. Based on information from DOJ, CBO expects that, because of the current level of prison overcrowding and the number of person-years saved by the legislation, DOJ would choose to maintain current staffing levels.

Fair Sentencing Act Retroactivity. The Fair Sentencing Act of 2010 (FSA) reduced the statutory penalties for offenses involving possession of crack cocaine. H.R. 3713 would make provisions of FSA (as amended by this bill) retroactive. Based on information provided by the USSC, CBO estimates that making the amended provisions of FSA retroactive would reduce the number of prisoners by about 17,000 person-years over the 2017- 2021 period, which CBO estimates would reduce DOJ's costs by $209 million over that period. The reductions in prison costs from retroactively applying FSA would grow more slowly after 2021 as the number of affected inmates would diminish in future years. CBO estimates that implementing this provision would reduce DOJ's costs by $343 million over the 2017-2026 period.

Safety Valves. Under current law, persons convicted of drug-trafficking offenses may receive sentences below the mandatory minimum if they have only one prior Federal sentence of less than 60 days (which would give them one criminal history point) and meet other requirements.1 This exception to the minimum sentence is known as the "safety valve." H.R. 3713 would expand the prison population eligible for the safety valve to include inmates with four criminal history points as long each conviction carries only one point. That expansion would allow reduced sentences to apply to persons with up to four convictions that resulted in less than 60 days of total sentence, with certain restrictions. Additionally, the bill would create a second safety valve that would allow mandatory minimum sentences of 10 years to be shortened if the defendant meets specified criteria.

1Criminal history points are a tool used to determine the length of a defendant's prison sentence. Under the U.S. Federal Sentencing Guidelines, the permissible length for a defendant's prison sentence depends on the defendant's prior criminal history combined with the seriousness of the current offense.

Based on information provided by DOJ, CBO estimates that the expansion and creation of safety valves would reduce the number of prisoners over the 2017-2021 period by about 5,400 person-years and by 17,000 person-years over the 2017-2026 period and would reduce DOJ's costs by $70 million over the 2017-2021 period and $233 million over the 2017-2026 period.

Statutory Sentencing for Possession of a Firearm. H.R. 3713 would increase the maximum sentence for the unlawful possession of a firearm by a convicted felon, and certain other offenders, from 10 years to 15 years. Simultaneously it would reduce the enhanced mandatory minimum for armed career criminals from 15 years to 10 years. Prospectively, based on information from the USSC, CBO does not anticipate there would be any savings to the prison system from that provision over the 2017-2021 period. However, this provision could be applied retroactively, pending approval by a court.

Based on information provided by the USSC on court approved reductions in sentences, CBO estimates that the retroactive effects of the provision would result in savings of 3,100 person-years over the 2017-2021 period. CBO estimates that implementing this provision would reduce costs by $39 million over the 2017-2021 period and $120 million over the 2017-2026 period.

Mandatory Minimums for Prior Drug Offenses. H.R. 3713 would reduce mandatory minimum sentences for prior drug felons. The "three-strikes" penalty would be reduced from life imprisonment to 25 years and 20-year minimum sentences would be reduced to 15 years.2 This section would also establish a mandatory prison term for a defendant who commits a drug offense involving a detectable amount of heroin containing fentanyl.

2The "three strikes" penalty significantly increases the prison sentence of persons who have two or more prior convictions and in some cases carries a mandatory life sentence.

Under current law a mandatory minimum sentence can apply to any repeat drug offense, whether the felony is serious or minor. The bill would change the criteria for the application of a mandatory minimum sentence to include only serious drug felonies and serious violent felonies.3 Those felonies are Federal or State-level crimes for which the maximum sentence is 10 years or more. Including convictions for possession of heroin containing fentanyl and prior State-level crimes along with Federal, among those that may result in a mandatory minimum sentence for qualifying drug offenders would increase the number of person-years served and mitigates savings under this provision of the legislation. CBO decreased person-year savings by 25 percent to reflect an increase in prison sentences because of this provision.

3A serious drug felony is a Federal offense involving a controlled substance for which the maximum term of imprisonment is ten years or more, as defined in titles 18, 21, and 46 of the U.S. Code. A serious violent felony is a Federal offense consisting of murder, manslaughter, sexual abuse, use of a firearm, or other severe offense for which the maximum term of imprisonment is 10 years or more, as defined in section 3559 of title 18 of the U.S. Code.

According to information from the USSC, savings for newly sentenced inmates under the lowered mandatory minimum would begin 15 years after sentencing, thus CBO estimates no savings over the next 10 years.

This provision may be used to retroactively reduce sentences. Based on information provided by the USSC, CBO estimates that such reductions would result in a decrease of 1,100 person-years over the 2017-2021 period, reducing costs by $15 million over the 2017-2021 period and $63 million over the 2017-2026 period.

Mandatory Minimums for Firearms Offenses. The bill would limit mandatory minimum sentences for offenses involving the use of a firearm in the commission of a drug-related or violent crime to offenders who have previously been convicted and have served a sentence for such an offense. The bill also would reduce that mandatory minimum from 25 years to 15 years. However, the bill would expand the list of offenses that may lead to a mandatory minimum sentence to include similar prior State-level convictions in which the offender carried, brandished, or used a firearm. This provision may be applied retroactively, but only after a court considers sentencing factors, including any danger the inmate may pose to society should they be released and whether or not they have engaged in misconduct during their time in prison.

Based on information provided by the USSC, CBO estimates that the retroactive effects of this provision would result in a decrease of 350 person-years over the 2017-2021 period. The inclusion of similar State-level convictions among those that may result in a mandatory minimum sentence would increase the number of person-years served thereby partially offsetting those estimated reductions. CBO estimates that implementing this provision would reduce costs by $5 million over the 2017- 2021 period and $10 million over the 2017-2026 period.

Other Costs. H.R. 3713 would impose costs on the Judiciary. As inmates were released from prison earlier than they would be under current law, a greater number of probation officers would be required to supervise them, thereby increasing costs. The bill also would increase the workload of judges and court officers as new requests for changes in sentencing are considered by the court and inmates are processed for earlier release. According to information from the Administrative Office of the United States Courts, the bill would increase costs to the Judiciary by less than $500,000 a year over the 2017-2021 period.

Changes in Direct Spending and Revenues

Under current law prisoners are generally ineligible to receive benefits from certain Federal programs, including Medicare, Medicaid, and health insurance marketplaces; Social Security; SSI; and SNAP. By accelerating the release of prisoners, CBO estimates that the bill would increase the number of people receiving benefits from those programs, resulting in an increase in direct spending totaling $258 million over the 2017-2026 period (see Table 3).

Medicaid. Based on research regarding the post- incarceration income of felons, CBO estimates that about half of the prisoners released under this bill would have incomes below 138 percent of the Federal poverty line, the upper income eligibility threshold for adults made newly eligible for Medicaid under the Affordable Care Act (ACA). Of those who would qualify for Medicaid, about half would be eligible under pre-ACA eligibility categories and qualify for the standard Federal Medicaid matching rates (which average 57 percent nationally), and the other half would be eligible for the new eligibility category under the ACA and qualify for Federal matching rates that begin at 100 percent in 2016 and phasedown to 90 percent by 2020. CBO also expects that health care costs for former prisoners would be about 25 percent higher than for the average Medicaid beneficiary stemming from mental healthcare needs and substance abuse issues. CBO estimates that Medicaid spending for those former prisoners would total $80 million over the 2017-2026 period.

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Health Insurance Marketplaces. Based on research on the age, employment status, and post-incarceration income of felons, CBO and JCT estimate that about one-quarter of the prisoners released under the bill would obtain subsidized insurance through a health insurance marketplace. Accordingly, CBO and JCT estimate that the bill would increase premium assistance tax credits and cost-sharing subsidies provided through health insurance marketplaces by $62 million over the 2017-2026 period. That increase in subsidies reflects a $53 million increase in outlays and a $8 million decrease in revenues.4

4The subsidies for health insurance premiums are structured as refundable tax credits; following the usual procedures for such credits, CBO and JCT classify the portions that exceed taxpayers' income tax liabilities as outlays, and the portions that reduce tax payments as reductions in revenues. Cost-sharing subsidies are all classified as outlays.

Social Security and Medicare. Based on administrative data from the Social Security Administration, CBO estimates that about 4 percent of prisoners would receive Social Security benefits if they were not incarcerated. CBO applied that share to the estimated reduction in prisoners and estimates that enacting H.R. 3713 would increase Social Security spending by $34 million over the 2017-2026 period (that spending would be classified as off-budget). Most prisoners who would gain eligibility for Social Security under this proposal also would gain eligibility for Medicare benefits, at an estimated cost of $25 million over the 2017-2026 period.

Supplemental Security Income. Using data from the Social Security Administration on SSI beneficiaries whose benefits were suspended while they were incarcerated, CBO estimates that 10 percent of prisoners released under the bill would receive SSI benefits, at an estimated cost of $42 million over the 2017-2026 period.

Supplemental Nutrition Assistance Program. Based on research on the post-incarceration income of felons, CBO estimates that almost one-quarter of the prisoners released under the bill would receive SNAP benefits, at an estimated cost of $24 million over the 2017-2026 period. This estimate accounts for the fact that most States have taken the option under current law to modify or opt out of the ban on drug felons from receiving SNAP benefits.

PAY-AS-YOU-GO CONSIDERATIONS

The Statutory Pay-As-You-Go Act of 2010 establishes budget- reporting and enforcement procedures for legislation affecting direct spending or revenues. The net changes in outlays and revenues that are subject to those pay-as-you-go procedures are shown in the following table. Only on-budget changes to outlays or revenues are subject to pay-as-you-go procedures. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

INCREASE IN LONG-TERM DIRECT SPENDING AND DEFICITS:

CBO estimates that enacting H.R. 3713 would not increase net direct spending or on-budget deficits by more than $5 billion in any of the four consecutive 10-year periods beginning in 2027.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

H.R. 3713 contains no intergovernmental mandates as defined in UMRA.

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 3713 contains no private-sector mandates as defined in UMRA.

PREVIOUS CBO ESTIMATE

On May 17, 2016, CBO transmitted a cost estimate for S. 2123, the "Sentencing Reform and Corrections Act of 2015," as reported by the Senate Committee on the Judiciary on October 26, 2015. H.R. 3713 is similar to title 1 of S. 2123; however, H.R. 3713 would create new mandatory minimum sentences for possession of certain narcotics while S. 2123 would create new mandatory minimum sentences for different crimes. H.R. 3713 also does not include changes to programs that aim to reduce recidivism that are in the Senate bill. Differences in the estimated budgetary effects of the two bills reflect those differences in legislative language.

ESTIMATE PREPARED BY:

Federal Costs: Marin Burnett (DOJ), Emily Stern (SSI), Kathleen FitzGerald (SNAP), Robert Stewart (Medicaid), Katharine Fritzsche (health insurance marketplaces), and Noah Meyerson (Social Security and Medicare)

Revenues: Staff of the Joint Committee on Taxation Impact on State, Local, and Tribal Governments: Leo Lex Impact on the Private Sector: Paige Piper/Bach

ESTIMATE APPROVED BY:

H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis

Duplication of Federal Programs

No provision of H.R. 3713 establishes or reauthorizes a program of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the Government Accountability Office to Congress pursuant to section 21 of Public Law 111-139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance.

Disclosure of Directed Rule Makings

The Committee estimates that H.R. 3713 specifically directs to be completed no specific rule makings within the meaning of 5 U.S.C. Sec. 551.

Performance Goals and Objectives

The Committee states that pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, H.R. 3713, the Sentencing Reform Act of 2015, reforms mandatory minimum sentences for certain Federal drug offences; broadens the existing "safety valve" and creates a new, narrowly tailored safety valve for certain drug offenders; reforms sentences for certain firearms offenses; and applies the provisions of the Fair Sentencing Act of 2010 retroactively.

Advisory on Earmarks

In accordance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 3713 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

Section-by-Section Analysis

The following discussion describes the bill as reported by the Committee.

Section 1. Short Title. This section cites the short title of the bill as the "Sentencing Reform Act of 2015."

Section 2. Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies. This section provides that an offender with prior conviction(s) for a "serious violent felony"4 or a "serious drug felony"5 may receive an enhanced sentence under 21 U.S.C. Sec. 841 (the Controlled Substances Act) or 21 U.S.C. Sec. 960 (the Controlled Substances Import and Export Act). It reduces the three-strike mandatory life sentence to 25 years and the two-strike sentence from 20 to 15 years. It includes a mandatory, consecutive, 5-year maximum sentencing enhancement for trafficking in heroin "cut" with fentanyl, or fentanyl sold as heroin. It applies the sentencing reductions retroactively, except for offenders who have prior serious violent felony convictions that resulted in a prison sentence of greater than 13 months.

418 U.S.C. Sec. 3559(c)(2)(F).

518 U.S.C. Sec. 924(e)(2)(A).

Section 3. Broadening of Existing Safety Valve. This section expands the number of criminal history points that will allow an offender to be covered by the existing drug "safety valve"6 from one point to four points. This expansion will apply to many offenders with prior misdemeanor convictions, but the legislation excludes offenders with prior 3-point felony convictions, or prior 2-point violent or drug trafficking convictions. For offenders with more than four points, this section allows courts to waive the criminal history requirement in the safety valve if the court finds, in writing, that the seriousness of the defendant's criminal history is substantially overrepresented, or that the defendant is unlikely to commit further crimes. However, any defendant who has been convicted of a serious drug felony or a serious violent felony is excluded from this "overrepresentation" provision. This section applies only prospectively.

618 U.S.C. Sec. 3559(f).

Section 4. Limitation on Application of the 10-Year Mandatory Minimum. This section creates a second safety valve that will allow judges to sentence certain offenders below the 10-year mandatory minimum. In cases involving a 10-year mandatory minimum sentence, if the defendant meets the following criteria, the court may impose a sentence as if the statutory minimum term of imprisonment was 5 years:

The defendant does not have a prior conviction for a serious drug felony or serious violent felony (as defined in the legislation);

The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense, and the offense did not result in death or serious bodily injury to any person;

The defendant did not play an enhanced role in the offense by acting as an organizer, leader, manager, or supervisor of other participants in the offense, as determined under the sentencing guidelines, or by exercising substantial authority or control over the criminal activity of a criminal organization, regardless of whether the defendant was a member of such organization;

The defendant did not act as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer of the controlled substances involved in the offense or engage in a continuing criminal enterprise;7

721 U.S.C. Sec. 848.

LThe defendant did not distribute a controlled substance to or with a person under 18 years of age; and

Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

This section only applies prospectively.

Section 5. Clarification of Section 924(c) of Title 18, United States Code. This section expands the enhanced penalties for violent firearms offenders to those with prior firearm convictions. It also revises section 924(c) of title 18 to address inappropriate "stacking" of Federal firearms charges. As the law currently reads, defendants who are convicted of a first offense under that section receive a mandatory, consecutive, minimum penalty of 5 years. For each "second or subsequent offense," the penalty jumps to 25 years. In some cases, courts have interpreted "second or subsequent" to include multiple charges in the same indictment. In "stacking" charges this way, some defendants have received inappropriately lengthy sentences. This section clarifies that an enhancement under 924(c) can only apply after a defendant has had an intervening conviction under 924(c) or under State law for the same conduct. This section also reduces the enhanced penalty from 25 to 15 years. This "stacking" fix applies retroactively, though the sentence reduction does not.

Section 6. Amendment to Certain Penalties for Certain Firearm Offenses and Armed Career Criminal Provision. This section raises the statutory maximum for unlawful possession of firearms to 15 years, but lowers the enhanced mandatory minimum sentences for repeat offenders to 10 years. This change is intended to fix a loophole in the Federal firearm sentencing statutes.

Section 7. Application of Fair Sentencing Act. This section permits certain offenders sentenced for crack offenses prior to the Fair Sentencing Act of 2010 (FSA) to have their sentences retroactively reduced. As noted above, it provides FSA retroactivity for offenders who have never received a reduction, who only received a reduction to the mandatory minimum, or for those who were ineligible because they were sentenced at the mandatory minimum.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, and existing law in which no change is proposed is shown in roman):

The full text of the report is found at: https://www.congress.gov/congressional-report/114th-congress/house-report/888/1?r=8

Myron Struck, editor, Targeted News Service, Springfield, Va., 703/304-1897; [email protected]; http://www.targetednews.com

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