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.
The United States has the highest rate of incarceration of any country in the world, and federal spending on incarceration in 2012 was estimated at $81 billion.[3] In 2013, the cost of the Federal Bureau of Prisons (BOP) accounted for nearly one-third of the Department of Justice’s (DOJ) discretionary budget.[4] Federal incarceration has become one of our nation’s biggest expenditures, swallowing the budget of federal law enforcement.[5] It costs more than $36,000 per year to house just one federal inmate,[6] almost four times the average yearly cost of tuition at a public university.
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]
Moreover, advocates and allies on the Hill knew what policies were driving federal incarceration and they were not the prison reform provisions in the FSA. Currently, forty-five percent of the people in federal prison are there for drug crimes. What was and is driving incarceration on the federal level are the long sentences associated with drug crimes and the increasing number of people being prosecuted for immigration crimes.[10] Thus, it is no surprise that the sentencing sections of the FSA, in the end, were the most important aspect of the bill, but were only added toward the end of the debate about federal reform.
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]
The recognition of the increasing number of women in federal prison has also been important to efforts to address the serious problems in the federal criminal justice system. The growing number of women in the system have been part of the catalyst for change. As of 2019, women make up more than seven percent (or more than 12,000)[17] of the BOP population compared to women consisting of 13,000 of the total state and federal prison population in 1980.[18] Since that time, the number of women in prison has increased by twice the rate of men incarcerated.[19] When women go to prison, their children and families are also symbolically incarcerated with them. Children are the collateral consequence of the increasing number of women in jails and prisons because their mother’s absence often leads to a breakdown of the family. Unfortunately, what often lands women in prison are their histories of physical and sexual abuse, high rates of HIV, and substance abuse problems.[20]
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:
You want to know what this was really all about. The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying. We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.[31]
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]
Mandatory minimum sentences take discretion away from judges and give it to prosecutors who use the threat of these lengthy sentences to frustrate individuals asserting their constitutional right to trial. The threat of long sentences, particularly at the federal level, puts immense pressure on people to plead guilty to crimes and waive their right to trial.[34] Only three percent of individuals charged with federal drug crimes go to trial.[35] Human Rights Watch believes this historically low rate of trials reflects an unbalanced and unhealthy criminal justice system.
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.
Prosecutors have control over sentencing under mandatory sentencing laws because they have unreviewable authority to decide what charges to pursue. In prosecutors’ hands, the minimum transforms from a certain and severe sanction to a tool for prosecutors to incentivize behavior and make judgment calls. Often prosecutors use their charging power to cut deals, secure testimony against other individuals, and force guilty pleas in cases where the evidence is weak. They also have the authority to not charge people with mandatory sentences when they think that it would be too severe a sentence.
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.
Between 1984 and 1985, crack began to appear in urban areas such as New York, Miami, and Los Angeles. The availability of small quantities of crack cocaine at an inexpensive price revolutionized inner-city drug markets.[57] By 1986, crack was widely available in large U.S. cities and was relatively inexpensive. For fifty dollars to $100, a person could buy powder cocaine in gram or half gram quantities. For five dollars to twenty dollars, however, a person could buy a small vial of crack that included a few crack rocks. Along with the new drug market that crack created in cities across America came dramatic claims about the effects of the drug.
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.
During consideration of an earlier version of the bill, the House Judiciary Subcommittee on Crime issued a report determining that the mandatory minimum sentencing framework would ensure that the DOJ directed its “most intense focus” on “major traffickers” and “serious traffickers.”[62] After consulting with Drug Enforcement Agency (DEA) agents and prosecutors, the Subcommittee set the high penalties for major traffickers at a level of 100 grams of crack to 5000 grams of powder cocaine—a fifty to one disparity.[63] As the ADAA advanced through Congress, the Senate, citing the harmfulness of the drug, increased the penalty for crack.[64] The legislative history does not explain why Congress rejected or accepted any one ratio in particular beyond showing that different ratios were considered.[65]
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.
The rapid increase in the use of crack between 1984 and 1986 created many myths about the effects of the drug in popular culture. These myths were often used to justify treating crack cocaine differently from powder cocaine. For example, crack was thought to be so much more addictive than powder cocaine that it was “instantly” addictive. It was said to cause violent behavior, destroy the maternal instinct leading to the abandonment of children, be a unique danger to developing fetuses, and cause a generation of so-called “crack babies” that would plague the nation’s cities for their lifetimes. Such dramatic claims were widely repeated in the news media. As a result of the enormous fear of crack, many in Congress said that the existing sentences for drug violations were inadequate to deal with the dangers of this new drug. [69]
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]
In response to this directive, in April 1997, the Sentencing Commission issued a second report again urging the elimination of the 100 to one ratio. The Sentencing Commission indicated that it was “firmly and unanimously in agreement that the current penalty differential for federal powder and crack cocaine cases should be reduced by changing the quantity levels that trigger mandatory minimum penalties for both powder and crack cocaine.”[80] Therefore, the Sentencing Commission recommended that Congress reduce the current 500-gram trigger for the five-year mandatory minimum sentence in powder cocaine offenses to a level between 125 and 375 grams and that it increase the five-gram trigger in crack cocaine offenses to between twenty-five and seventy-five grams.[81] The Clinton Administration also publicly supported reducing the ratio to ten to one.[82] Nevertheless, despite the Sentencing Commission’s recommendations, Congress made no changes to the sentencing structure.
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]
The Sentencing Commission recommended a three-pronged approach for revising the sentencing policy, based on their findings, which would: (1) increase the threshold quantity to trigger a five-year mandatory minimum for crack offenses to at least twenty-five grams and a ten year mandatory minimum for 250 grams (and repeal the mandatory minimum for simple possession of crack cocaine), (2) provide for sentencing enhancements, and (3) maintain the mandatory minimum thresholds for powder at their current levels.[87] Recommending a twenty to one ratio, the Sentencing Commission made clear that it again “firmly and unanimously” believed the ratio to be unjustified.[88]
Despite three commission reports and over twenty years of demonstrated evidence to the contrary, it took Congress until 2010 to address the crack cocaine disparity.
III. Federal Sentencing After the Anti-Drug Abuse Act of 1986
Federal judges for many years lamented over mandatory sentences including the nature of the U.S. Sentencing Guidelines (Guidelines) that were created by the Sentencing Commission as a result of the SRA. Not only did federal judges protest the Guidelines, but several Supreme Court Justices also objected to the lack of discretion judges had as a result of mandatory sentences and the Guidelines. Former Associate Justice Anthony Kennedy declared: “I’m against mandatory sentences. They take away judicial discretion to serve the four goals of sentencing. American sentences are 8 times longer than their equivalents in Europe.”[89]
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]
Finally, former Chief Justice William Rehnquist, said:
[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] Booker fundamentally 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]
- Twentieth Anniversary of the Anti-Drug Abuse Act of 1986
- 2007 Sentencing Commission Report and Guideline Amendment Regarding Crack Cocaine to Congress
The Supreme Court’s decision in United States v. Booker[110] and renewed interest by Congress reinvigorated the Sentencing Commission’s efforts to address the crack and powder cocaine disparity.[111] In addition, in 2007, the Sentencing Commission released its fourth report to Congress on cocaine and federal sentencing policy. Among its findings, the Sentencing Commission recommended that Congress:
- Increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence, as current law subjects low-level drug offenders to the same or harsher sentences as major dealers.
- Repeal the mandatory minimum penalty for simple crack cocaine possession.
- Reject proposals to lower the amount of powder cocaine required to trigger the five- and ten-year mandatory minimums, as the Commission finds “no evidence to justify such an increase.”[112]
The Sentencing Commission reiterated its long-standing position that the 100 to one drug ratio undermines the purpose of the SRA. Furthermore, the Sentencing Commission concluded that the manner in which the Guidelines incorporated the statutory mandatory minimum penalties for crack cocaine offenses resulted in the Guidelines contributing to the unfairness of the 100 to one disparity. In May 2008, the Sentencing Commission approved an amendment to the Guidelines that modified the guideline ranges for crack cocaine offenses that included the statutory mandatory minimum penalties as opposed to exceeding them.[113] The amendment lowered the guideline ranges for crack cocaine offenses by two levels in order for the guideline floor not to exceed the mandatory minimum.[114] For example, under the former Guidelines, five grams of crack cocaine would trigger a level twenty-six (sixty-three to seventy-eight months) guideline sentence, but after the amendment, the base level for the same amount of drugs was twenty-four (fifty-one to sixty-three months). This range includes the five-year or sixty-month statutory minimum.[115]
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.
Since that time, federal district courts have processed 25,515 motions, granting 16,433 motions for reduced sentences and denying 9,082. The Sentencing Commission conducted a study of the recidivism rates of individuals who received a sentence reduction as a result of the 2007 amendment. The study compared this group of individuals to a similarly situated group of people with crack cocaine offenses who served their normal sentence. The research concluded that there was no statistically significant difference in recidivism rates between the two groups of individuals.[118]
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.
In 2008 (as well as in 2019), the United States incarcerated more people than any country in the world, including countries with larger populations, such as China. American jails and prisons at the state and federal level held more than 2.3 million adults. China was second, with 1.5 million people behind bars, and Russia was third, with 890,000 people incarcerated.[122] Also, America locked up more of its citizens than nations such as South Africa, Iran, and Germany.[123]
When you examine the raw numbers behind the one in 100 statistic, it is even more alarming. According to Pew, in 2008, over 2.3 million adults were held in prisons or jails in this country, which translated to one in every 99.1 men and women.[124] In addition, the report compares corrections spending to investments on other state priorities and reveals how incarceration has outpaced other state level responsibilities. The report also identified how some states were limiting expansion of both prison costs and populations while keeping the public safe.
When prison populations grew, costs to states also escalated. In 2007, states spent more than $49 billion on corrections, of which $44 billion came from general funds, an increase of $11 billion over twenty years.[125] Yet, almost half of the people released from jails and prisons returned within three years, so the cost of incarceration had little effect on national recidivism rates. Another important finding of the report was that people committing violent and serious crimes account for some of the increase in incarceration rates, but the real growth resulted from people who committed low-level crimes and those who had violated their probation or parole.[126]
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]
According to Pew, in 2007, thirty-six states’ and the BOP’s prison populations increased.[128] Of the seven states with the largest prison populations (i.e. more than 50,000 inmates), three states increased (Ohio, Florida, and Georgia) and four declined (New York, Michigan, Texas, and California).[129] Ultimately, states found that one of the largest budget lines was prison and correction costs, and in the wake of the 2008 recession they were forced to reduce prison costs.[130]
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.
President George W. Bush announced an initiative to invest in reentry programs in his 2004 State of the Union Address. He 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.”[131] With that speech, advocates in Washington D.C. began to galvanize momentum in support for federal reentry legislation and the political landscape around reentry advocacy began to change.
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]
VII. Election of President Barack Obama
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.
Early in his presidency, Obama became a critical supporter of the growing movement to address discrimination and unjust laws and policies in the criminal justice system that created disparities in sentencing, specifically in drug cases. As a community organizer on the South Side of Chicago, Obama saw the racial disparities up close that were the result of the more than forty-year-old “war on drugs.” Attorney General Eric Holder has said that reforming the criminal justice system was a particularly personal issue for Obama. Since they met in 2004, Holder said that he and Obama had many discussions about the justice system and why people are prosecuted and imprisoned, especially people of color.[138]
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]
On August 3, 2010, during his second year in office, Obama signed the FSA 2010. The law reduced the disparity in the penalties for crack and powder cocaine. The old law required a person convicted of selling five grams of crack cocaine to receive a 5-year mandatory minimum, but those who sold 500 grams of powder cocaine would receive the same sentence. The FSA 2010 reduced the 100 to one disparity to eighteen to one. Criminal justice reform advocates are still fighting for the disparity to be eliminated.
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]
In December 2013, the DOJ’s Inspector General identified the growing crisis of overcrowding in the federal prison system as one of the DOJ’s top challenges.[147] At the time, the BOP had custody of almost 217,000 people and was operating at more than thirty-six percent over capacity. The President’s fiscal year 2015 budget request for the BOP was $6.89 billion, accounting for more than twenty-five percent of the DOJ’s entire budget.[148]
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.
But here’s the thing: Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high. In far too many cases, the punishment simply does not fit the crime. If you’re a low-level drug dealer, or you violate your parole, you owe some debt to society. You have to be held accountable and make amends. But you don’t owe 20 years. You don’t owe a life sentence. That’s disproportionate to the price that should be paid.
And by the way, the taxpayers are picking up the tab for that price. Every year, we spend $80 billion to keep folks incarcerated—$80 billion. Now, just to put that in perspective, for $80 billion, we could have universal preschool for every 3-year-old and 4-year-old in America. That’s what $80 billion buys. For $80 billion, we could double the salary of every high school teacher in America. For $80 billion, we could finance new roads and new bridges and new airports, job training programs, research and development. We’re about to get in a big budget debate in Washington—what I couldn’t do with $80 billion. It’s a lot of money. For what we spend to keep everyone locked up for one year, we could eliminate tuition at every single one of our public colleges and universities.[151]
President Obama went on to say:
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.
The bottom line is that in too many places, black boys and black men, Latino boys and Latino men experience being treated differently under the law.
And I want to be clear—this is not just anecdote. This is not just barbershop talk. A growing body of research shows that people of color are more likely to be stopped, frisked, questioned, charged, detained. African Americans are more likely to be arrested. They are more likely to be sentenced to more time for the same crime. And one of the consequences of this is, around one million fathers are behind bars. Around one in nine African American kids has a parent in prison.
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.
So our criminal justice system isn’t as smart as it should be. It’s not keeping us as safe as it should be. It is not as fair as it should be. Mass incarceration makes our country worse off, and we need to do something about it.[152]
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:
[S]hin[ing] a spotlight on this issue, because while the people in our prisons have made some mistakes—and sometimes big mistakes—they are also Americans, and we have to make sure that as they do their time and pay back their debt to society that we are increasing the possibility that they can turn their lives around.[153]
Clemency was a top priority for President Obama. Former White House Counsel Kathy Ruemmler said the President often stated he was not receiving enough recommendations in support of clemency from the DOJ.[154] Soon after the 2012 election, he requested she work with the DOJ to increase the amount of clemency petitions for him to consider.[155] She began coordinating with Attorney General Holder and Deputy Attorney General James Cole to develop a process to generate more clemency petitions for the President to review. According to Ruemmler, the idea for the effort came directly from Obama and he understood that it “would not have happened organically.”[156] He wanted her to be “creative and aggressive” and he considered clemency an important part of his legacy.[157]
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]
Then, in January 2014, Cole announced a new DOJ initiative to review the sentences of people who have committed nonviolent crimes and were serving long and harsh sentences.[160] This was a momentous opportunity to correct injustices in individual cases and on April 23, 2014, the Deputy Attorney announced a new set of criteria that the DOJ and the White House would use when considering clemency petitions from individuals in federal prisons.
According to the criteria released by the DOJ, people must have been:
serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
[have a] non-violent history [and are] low level offenders without significant ties to large scale criminal organizations, gangs or cartels; . . .
have served at least 10 years of their prison sentence; . . .
have [no] significant criminal history; . . .
have demonstrated good conduct in prison; and . . .
have no history of violence prior to or during their current term of imprisonment.[161]
The criteria helped the DOJ identify individuals who, if sentenced at the time their petition was submitted under current sentencing laws and policies, would likely have received a substantially lower sentence. Deputy Attorney Cole also announced plans to name a new Pardon Attorney and additional staff in an effort to reinvigorate the Office of the Pardon Attorney.
After announcing the new clemency initiative criteria, Cole reached out to the Washington, D.C. legal community to request that it provide pro bono assistance to people in federal prison who apply for relief through the DOJ initiative.[162] After Cole’s request for assistance, the Clemency Project 2014 (“Clemency Project”) was launched. Clemency Project members collaborated to recruit and train lawyers on how to screen cases to determine whether they met the DOJ criteria. The Clemency Project was a collaboration of the ABA, the ACLU, Families Against Mandatory Minimums (FAMM), the Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers (NACDL), and other lawyers around the country.
The Clemency Project recruited and trained nearly 4,000 volunteer lawyers and reviewed more than 36,000 clemency petitions by individuals in federal prison who requested assistance. The Clemency Project submitted nearly 2,600 petitions to the Office of the Pardon Attorney, and 894 of those petitions were granted, but many petitions screened did not meet the DOJ criteria.[163] By the end of President Obama’s second term in office, he granted a total of 1,715 commutations, more than the past twelve presidents combined, including 568 individuals who were serving life without parole sentences.[164] On his last day in office, President Obama granted 330 commutations, the largest single set of commutations granted on one day in U.S. history. As a result of the DOJ clemency initiative, he also granted 212 pardons.[165]
VIII. The Fair Sentencing Act of 2010
In 2005, advocates in Washington, D.C., including a coalition of criminal and juvenile justice, human rights, faith-based, and civil rights organizations called the Justice Roundtable, began a campaign to eliminate the federal crack and powder cocaine disparity created by the ADAA that established the 100 to one disparity. The campaign was called, “Crack the Disparity” and the coalition included the ABA, the ACLU, the Drug Policy Alliance (DPA), FAMM, Leadership Conference on Civil and Human Rights (LCCHR), NACDL, Open Society Policy Center, and The Sentencing Project, among other groups. Building on reports by the Sentencing Commission criticizing the disparity between the two drugs and bipartisan congressional support for reducing the disparity,[166] the Justice Roundtable successfully educated members of Congress and the public at large about the importance of the crack cocaine issue.
The FSA 2010 reduced the sentencing disparity between offenses for crack and powder cocaine from 100 to one to eighteen to one.[167] In March of 2010, the FSA 2010 was passed by unanimous consent in the Senate, and in July by the House of Representatives by voice vote.[168] The FSA 2010 represented a decade-long, and truly bipartisan, effort to reduce the racial disparities caused by the federal crack cocaine sentencing laws and to restore confidence in the justice system, particularly in communities of color.
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]
- The United States Sentencing Commission Played a Critical Role in Federal Criminal Justice Reform After the Fair Sentencing Act
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:
She was 21 years old and in a horribly abusive relationship with a man in Portland, Ore. who beat her and robbed her of any sense of self she ever had. She was repeatedly cursed at, slapped, punched and kicked. Already the mother of a 5-year-old girl, she bore a second child to this man but knew in her heart she could not and would not raise her children in the midst of such violence and disease.
So she fled to a cousin in Omaha, Neb. where she found sanctuary—a safe place to live that was hundreds of miles from her abuser. Her cousin, though, was involved in dealing crack cocaine, and she made what she readily admits were some poor decisions that she still regrets to this day. Feeling out of options and indebted to her cousin for helping her escape her abusive relationship, she agreed to run various errands and transfer some money. Never once did she ever use drugs herself. Knowing this was not a place for her two young girls, she found the strength to move back to Portland, hoping to get away from the drug operation and to create a life where she could model for her daughters a mother who earned an honest living. She enrolled in a welfare-to-work program and began to get back on her feet.
But her past . . . caught up with her. She was indicted and convicted of conspiracy to distribute crack cocaine during her time in Omaha. Despite her previously clean record, her sentencing judge found his hands tied by a combination of mandatory minimums for crack cocaine and the then-mandatory sentencing guidelines based on those minimums. Hamedah received a life sentence. Her sentence was later reduced to 27 years.[182]
Judge Kopf denounced the mandatory sentence, saying, “it is my strongly felt opinion that neither [Hamedah nor her cousin] ought to spend the rest of their days in prison.”[183] Hamedah’s daughters fought tirelessly for her freedom throughout her imprisonment. Justice Roundtable advocates in Washington, D.C. brought Hamedah’s daughters, Ayesh and Kasaundra, to Capitol Hill in 2005 to share their mother’s story. As a result of the FSA 2010 and changes to the Guidelines in 2012, after serving nineteen years of a twenty-seven year sentence, Hamedah was released.
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]
Jared Kushner formed an alliance with conservative and some progressive advocates to support efforts to advance prison reform legislation in Congress. Although many of the organizations indicated they support sentencing reform efforts on the federal level, they made the political calculation that Trump would not support any significant sentencing reform in light of the Administration’s “law and order” policies and rhetoric. However, many criminal justice, civil rights, and faith-based groups did not support this approach to reform.[205]
Later, Kushner took his case for prison reform as a vehicle to pass criminal justice reform to a number of bipartisan members of the House. What ultimately became the FSA would focus on reforming prisons, or the “back end” of the criminal justice system, by allowing people to participate in reentry and rehabilitation programs and earn time credits (not good time credits) for early release to halfway houses. H.R. 5682 would allow people to serve the end of their prison sentence in home confinement or halfway houses but would not make changes to sentencing laws. During the House Judiciary committee vote on H.R. 5682, the FSA, an amendment was approved that fixed the statutory “good time” credit calculation by clarifying congressional intent to allow people to earn up to fifty-four days of credit per year, as opposed to the maximum of forty-seven days calculated by the BOP and apply it retroactively.[206] In addition, the bill would also require the BOP to place prisoners within 500 driving miles of their home.[207]
Law enforcement and some Republicans opposed applying any sentencing provisions retroactively. However, without retroactivity, even with sentencing provisions added, the bill would have little impact on reducing mass incarceration. H.R. 5682 improved BOP’s compassionate and elderly release processes for prisoners who are aging in prison and terminally ill.[208] The bill also banned shackling of pregnant women in federal prisons and jails and extended that ban to the post-partum period. It also made minor updates to the current law that requires the BOP to help people get government identification cards and birth certificates before they leave prison.[209]
H.R. 5682, the FSA sponsored by Representatives Doug Collins (R-GA) and Hakeem Jeffries (D-NY), was passed by the House on May 22, 2018, by a 366-59 vote. However, many criminal justice and civil rights groups[210] opposed the bill because it did not include sentencing or “front end” reforms.[211] The civil rights and criminal justice advocates’ message to Congress and the Trump Administration was that failing to address mandatory minimums, reduce the prison population, or address disparate impact on communities of color by ignoring sentencing reforms was a superficial attempt at criminal justice reform and would do little to reduce mass incarceration.[212]
At the core of the FSA was the ability to access rehabilitation and reentry programming as well as residential reentry centers (i.e. halfway houses) and home confinement. When the legislation was being considered, the BOP did not provide enough recidivism reduction programs or have sufficient halfway house capacity for those in prisons at time the bill was being debated—not to mention enough for the additional people who would need this programming under the bill. Furthermore, the BOP had reduced the number of residential reentry centers it contracted with to provide halfway house programing.[213]
Civil rights organizations were also concerned about a risk and needs assessment system that would be created under H.R. 5682 and the unconventional manner it would determine time credits for early transition to halfway houses or home confinement.[214] Finally, the fact Attorney General Jeff Sessions was given a considerable amount of discretion to implement the legislation, and was actively lobbying against the bill before the House passed it, could result in the legislation never being implemented.[215]
After the House vote to pass the FSA, the ball was in the Senate’s court. Senators Grassley and Durbin were committed to including sentencing reform in any bill that got considered by the Senate.[216] After it became painfully clear that Senators Grassley and Durbin as well as many criminal justice and civil rights groups would not support federal legislation without sentencing reforms, the White House and Jared Kushner for the first time signaled that they were open to including some of the sentencing provisions from the SRCA in the FSA.[217] Over the next few months, House and Senate members negotiated changes to the FSA that would include some title I provisions of SRCA such as:
- Reducing the mandatory minimum sentence for the federal “three strikes and you’re out” law from life without parole to twenty-five years and “two strikes” from twenty to fifteen years.
- Expanding the “safety valve” for low level drug offense. This would allow judges to sentence more people with drug convictions below mandatory minimum sentences.
- Fix the “stacking” of gun charges, which requires people to serve consecutive sentences for gun charges stemming from the same incident.
- Applying the Fair Sentencing Act of 2010 retroactively.
After several weeks of stalling by Majority Leader Mitch McConnell and some Senate procedural moves, what became Senate Bill 756 became the updated version of the FSA and there was an agreement to bring it to the Senate floor for a vote. This version of the legislation also included a reauthorization of the SCA which was added during the bill negotiations in the Senate.[218] On December 18, the Senate passed the bill by an 87-12 vote and a few days later the House passed the bill by a 358-36 vote.[219] President Trump signed the bill the next day.
XII. Results of The First Step Act
While the FSA was not the transformational legislation that many advocates think the federal criminal justice system needs, it has and will result in thousands of people coming home from prison early. One of the most celebrated provisions of the bill was the retroactive application of the FSA 2010. According to a DOJ letter to the House Judiciary Committee detailing results of the implementation of the FSA, as of June 6, 2019, over 1,300 resentencing motions had been granted and more than 1,000 people have been released.[220] The Sentencing Commission indicates that as of April 30, 2019, 78.9% of granted motions were made by the defendants, 11.8% by the attorney for the government, and 9.3% by the court.[221] On average, individuals received a seventy-three month (29.4%) reduction in their sentence. With original average sentences being 239 months, the new average sentence was 166 months with the decrease.[222]
Although the statute prior to the FSA indicated individuals should receive fifty-four days off their sentence per year for good conduct, the manner BOP calculated good time credit resulted in people only receiving forty-seven days per year. The legislation clarified that Congress intended for people to receive up to fifty-four days per year but that they would not be able to benefit from recalculated sentences until 210 days after the law was enacted, which would be July 20, 2019.[223] The DOJ is estimating that 3,000 people will be eligible for release on July 19; however, many of those people have detainers and will be transferred to the U.S. Immigration Customs and Enforcement (ICE) agency or to state law enforcement agencies to face deportation or additional criminal charges.[224]
The FSA has been celebrated by supporters as a rare moment of bipartisan agreement in Washington, D.C. To call the legislation a “first step” is to ignore the work of criminal justice and faith-based organizations, civil rights advocates, directly impacted people, reform-minded members of Congress, the Sentencing Commission, and past Administrations who had the courage to take the real first steps to confront the somber reality that the United States has over twenty percent of the world’s incarcerated population despite having less than five percent of the world’s population. This is not something to take pride in and it has taken this country over forty years to get to this point, but it does not have to take another forty years to get out of this predicament.
We know policies like mandatory minimum sentences for drug crimes and criminalization of immigration offenses have resulted in the explosion of the prison population on the federal level, and those laws can be reversed. It will take more than the FSA or legislation like it that tinkers around the margins. It will take an all-out comprehensive effort by Congress, the Administration, the federal judiciary, and the Sentencing Commission to right the wrongs of almost four decades of bad policy that has had such a devastating impact on those who become ensnared in the criminal justice system. Even more troubling, the policies have failed to produce an increase in public safety and have had a disproportionate harm on poor communities and communities of color. This country’s use of incarceration is no longer grounded in sound principle or policy. The true costs of this country’s addiction to incarceration must be measured in human lives and particularly the generations of young black and Latino men who serve long prison sentences and are lost to their families and communities.
The criteria for criminal justice reform must be to deal with the very real problems in the federal system, rather than appearing as if something meaningful has been accomplished but really just leaving the problem to the next generation to figure out. Prison reform and even incremental attempts at sentencing reform by themselves are insufficient to solve the serious issues our criminal justice system faces. No meaningful reform to our justice system can be made without addressing how people enter prison and how they can rebuild their lives after. This can only be done by committing to transformational change to the federal system as well as state criminal justice systems across the country. And while the FSA does not achieve that change, we can only hope that, along with the even more impactful reforms to the federal system over the past fifteen years, it will give others the courage to lead the charge for a revolution that will result in meaningful legal and policy reforms.
† Jesselyn McCurdy is a Deputy Political Director of the National Political Advocacy Department (NPAD) of the American Civil Liberties Union (ACLU), where she has represented the ACLU before Congress and the executive branch. She covered various criminal justice issues, including federal sentencing, prison reform, drug policy, and capital punishment. Jesselyn was a member of the ACLU Washington Legislative Office (WLO) staff before joining the U.S. House of Representatives Judiciary Committee’s Crime, Terrorism, and Homeland Security Subcommittee as Counsel. While working for the Judiciary Committee, she was the lead House Counsel for the historic Fair Sentencing Act of 2010, the legislation that lowered the 100 to one disparity between crack and powder cocaine. Prior to joining the ACLU staff, Jesselyn was the Co-Director of the Children’s Defense Fund’s (CDF) Education and Youth Development Division. Also, she authored the chapter entitled, Targets for Arrest in the book, From Education to Incarceration: Dismantling the School to Prison Pipeline. Jesselyn received a Bachelor of Arts in Journalism and Political Science from Rutgers University and her Juris Doctor from Catholic University of America, Columbus School of Law.
[1] First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
[2] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (authorizing the U.S. Sentencing Commission’s amendments in 2007, 2011, and 2014); Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008); Clemency Initiative, U.S. Dep’t Just., https://www.justice.gov/pardon/clemency-initiative [https://perma.cc/S9NJ-9GE7] (last updated Dec. 11, 2018).
[3] Bureau of Justice Statistics, FAQ Detail: What Contributions Do Federal, State, and Local Budgets Make to Justice Expenditures in the United States?, Off. Just. Programs, https://www.bjs.gov/index.cfm [https://perma.cc/L9VP-VXY7].
[4] Nancy La Vigne & Julie Samuels, Urban Inst., The Growth & Increasing Cost of the Federal Prison System: Drivers and Potential Solutions (2012), https://www.urban.org/sites/default/files/publication/26191/412693-The-Growth-amp-Increasing-Cost-of-the-Federal-Prison-System-Drivers-and-Potential-Solutions.PDF [https://perma.cc/7D5B-BDB2].
[5] Eric Holder, Attorney Gen., Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) [hereinafter Smart on Crime], https://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-annual-meeting-american-bar-associations [https://perma.cc/DA7N-6N49].
[6] Annual Determination of Average Cost of Incarceration, 83 Fed. Reg. 18,863, 18,863 (Apr. 30, 2018).
[7] First Step Act of 2018, Pub. L. No 115-391, 132 Stat. 5194.
[8] Letter from Stephen E. Boyd, Assistant Att’y Gen., Dep’t of Justice, to the Honorable Marc Short, Assistant to the President, The White House (July 12, 2018), https://freebeacon.com/wp-content/uploads/2018/08/DOJ_Letter_Beacon.pdf [https://perma.cc/LVJ9-CZF3].
[9] Letter from The Leadership Conference on Civil & Human Rights to the Members of the House of Representatives (May 21, 2018), https://www.aclu.org/letter/vote-recommendation-first-step-act [https://perma.cc/BWA7-MZVB].
[10] Over forty-five percent of BOP inmates are incarcerated for drug crimes and 6.3% are being held for immigration offenses. Offenses, Fed. Bureau Prisons, https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp [https://perma.cc/2BYB-C9KH] (last updated Sept. 7, 2019).
[11] George W. Bush, President, Address Before a Joint Session of the Congress on the State of the Union (Jan. 20, 2004), https://www.presidency.ucsb.edu/documents/address-before-joint-session-the-congress-the-state-the-union-24#axzz1y9IhNx00 [https://perma.cc/E7AE-3SY8].
[12] Prisoner Re-Entry Initiative, White House, https://georgewbush-whitehouse.archives.gov/government/fbci/pri.html [https://perma.cc/3E3P-BTCB].
[13] Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008).
[14] Lenora Lapidus et al., Am. Civil Liberties Union et al., Caught in the Net: The Impact of Drug Policies on Women and Families, https://www.aclu.org/sites/default/files/field_document/asset_upload_file431_23513.pdf [https://perma.cc/3F3D-33SF].
[16] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
[17] Inmate Gender, Fed. Bureau Prisons, https://www.bop.gov/about/statistics/statistics_inmate_gender.jsp [https://perma.cc/YD58-AXAB] (last updated Sept. 7, 2019).
[18] The Sentencing Project, Fact Sheet: Trends in U.S. Corrections 4 (2019), https://www.sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf [https://perma.cc/2DP8-9T9X].
[21] Smarter Sentencing Act of 2014, S. 1410, 113th Cong. (2014).
[22] Generate Inmate Population Reports, Fed. Bureau Prisons, https://www.bop.gov/about/statistics/population_statistics.jsp [https://perma.cc/Q4NC-88UK] (last updated Sept. 19, 2019).
[23] See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221.
[24] Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. (2015); S. 1410.
[25] U.S. Sentencing Comm’n, 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 4 (2011) [hereinafter Mandatory Minimum Penalties in the Federal Criminal Justice System], http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm [https://perma.cc/WJ8Y-LRYC].
[26] See Boggs Act of 1951, Pub. L. No. 82-255, § 1, 65 Stat. 767, 767.
[28] See Narcotics Control Act of 1956, Pub. L. No. 84-728, §§ 103, 105, 107, 108, 70 Stat. 567, 568, 570–71.
[29] Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236.
[30] A Brief History of the Drug War, Drug Pol’y Alliance, http://www.drugpolicy.org/issues/brief-history-drug-war [https://perma.cc/86AG-K2CW].
[32] Susan Schmidt & Tom Kenworthy, Cocaine Caused Bias’ Death, Autopsy Reveals, L.A. Times (June 25, 1986, 12:00 AM), https://www.latimes.com/archives/la-xpm-1986-06-25-sp-20106-story.html [https://perma.cc/8HT9-PNVB]; Lucius Outlaw III, We Have a Growing Fentanyl Problem so Let’s Not Repeat Past Mistakes, Hill (July 29, 2019, 5:30 PM), https://thehill.com/opinion/criminal-justice/455213-we-have-a-growing-fentanyl-problem-so-lets-not-repeat-past-mistakes [https://perma.cc/5LKD-Y3ZT].
[33] See, e.g., Anthony M. Kennedy, Assoc. Justice, Supreme Court of the U.S., Speech at the American Bar Association Annual Meeting (Aug. 9, 2003), http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_08-09-03.html [https://perma.cc/X4MH-QNQK] (“The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way.”).
[34] Human Rights Watch, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty 2 (2013), https://www.hrw.org/sites/default/files/reports/us1213_ForUpload_0_0_0.pdf [https://perma.cc/Q23P-TRL5].
[37] Erik Luna, Mandatory Minimum Sentencing Provisions Under Federal Law 2 (2010) (suggesting such practices impose a “trial tax” on defendants who exercise their constitutional right to a jury trial); Michael Nachmanoff, Mandatory Minimum Sentencing Provisions Under Federal Law 12 (2010); Jay Rorty, Statutory Mandatory Minimum Penalties in Federal Sentencing 2 (2010) (“Then prosecutors used that threat [of mandatory minimum penalties] to force defendants to bargain away their constitutional rights to request bail, remain silent, move to suppress illegally acquired evidence, discover the evidence against them, and receive a trial by jury—all as the price for not being exposed to the higher minimum.”).
[38] Thomas W. Hillier, II, Mandatory Minimum Sentencing Provisions Under Federal Law 6–7 (2010) (explaining that mandatory minimum penalties “create a powerful incentive for informants and cooperators to provide exaggerated or false information [to prosecutors] . . . [that] is not subjected to the crucible of trial”); Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 931 (1999) (“Former [Assistant United States Attorneys] . . . readily admit[] that, in some instances, they simply could not determine if the cooperator had told the truth.”); Nachmanoff, supra note 37, at 13 (“The problem with mandatory minimums is that they have a coercive effect. . . . This extraordinary pressure can result in false cooperation and guilty pleas by innocent people.”).
[39] Nachmanoff, supra note 37, at 13.
[40] Cynthia Hujar Orr, Re: Mandatory Minimum Sentencing Provisions Under Federal Law 8 (2010) (“The risk of being sentenced under mandatory minimums effectively precludes defendants from exercising their Sixth Amendment right to a trial. . . . [E]ven if a defendant has minimal culpability or a strong defense, faced with a mandatory minimum sentence of ten or more years, a defendant will almost always forego his right to a trial.”).
[41] See, e.g., Richard T. Boylan & Cheryl X. Long, Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors, 48 J.L. & Econ. 627, 627 (2005); Richard T. Boylan, What Do Prosecutors Maximize? Evidence from the Careers of U.S. Attorneys, 7 Am. L. & Econ. Rev. 379, 379 (2005); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy inCriminal Adjudication, 93 Cal. L. Rev. 1585, 1599–600 (2005) [hereinafter Brown, Decline of Defense Counsel].
[42] See, e.g., supra note 40.
[43] Pub. L. No. 98-473, 98 Stat. 1837 (codified as amended in scattered sections of 18 and 28 U.S.C.).
[44] William K. Sessions III, At the Crossroads of the Three Branches: The U.S. Sentencing Commission’s Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles, 26 J.L. & Pol. 305, 337–38 (2011).
[45] 28 U.S.C. § 991(a) (2012). The law established the Sentencing Commission and directed it to promulgate a system of detailed, mandatory sentencing guidelines prescribing the appropriate form and severity of punishment for offenders convicted of federal crimes.
[46] Jeffrey S. Parker & Michael K. Block, The Limits of Federal Criminal Sentencing Policy; or, Confessions of Two Reformed Reformers, 9 Geo. Mason L. Rev. 1001, 1007 (2001).
[47] Sessions, supra note 44, at 314 n.45.
[48] Parker & Block, supra note 46.
[49] Id. at 1008 (internal citations omitted).
[51] U.S. Sentencing Comm’n, 1991 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 9 (1991) [hereinafter USSC Mandatory Minimum Report], https://www.ussc.gov/research/congressional-reports/1991-report-congress-mandatory-minimum-penalties-federal-criminal-justice-system [https://perma.cc/A5CV-YG3G].
[53] See, e.g., Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185, 188–90 (1993).
[55] Harrison Act of 1914, Pub. L. No. 63-223, ch. 1, 38 Stat. 785, 785–90. There has always been a racial component to the prohibition of powder and crack cocaine. As one author notes, “[j]ust as the crack scare blossomed only after the practice of cocaine smoking spread to lower class, inner-city African-Americans and Latinos, so did class and racial fears fuel the first cocaine scare.” Craig Reinarman & Harry G. Levine, Crack in America: Demon Drugs and Social Justice 6–7 (Craig Reinarman & Harry G. Levine eds., 1997) [hereinafter Crack in America]. There was no evidence that African Americans used as much cocaine as whites, yet white politicians used race to stir up public sentiment against cocaine for political purposes. Crack in America, supra (citing David F. Musto, The American Disease: Origins of Narcotic Control (Yale Univ. Press 1973)). For example, in order to persuade representatives that a federal drug policy was necessary, drug crusaders spread the myth that cocaine-induced African Americans intended to rape white women. Crack in America, supra (citing Musto, supra, at 6–10, 67–68). At the same time, police switched from .32 caliber pistols to .38 caliber pistols because it was believed that the smaller guns could not kill the “‘cocaine-crazed’ Negro.” Crack in America, supra, at 7 (internal quotations omitted). Yale medical historian, David Musto, has noted that the first cocaine scare was actually a response to “black rebellion” against segregation and oppression. Crack in America, supra, at 7 (citing Musto, supra, at 7).
[56] Crack in America, supra note 55, at 2.
[57] U.S. Sentencing Comm’n, 1995 Report to the Congress: Cocaine and Federal Sentencing Policy 123, 181 (1995) [hereinafter 1995 USSC Report] (issued after a review of cocaine penalties as directed by Pub. L. No. 103-322, § 280006).
[58] 1995 USSC Report, supra note 57, at 123.
[60] See, e.g., 132 Cong. Rec. 22,667 (1986) (statement of Rep. Traficant).
[61] William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev. 1233 (1996).
[62] H.R. Rep. No. 99-845, at 16–17 (1986). The Committee defined the two categories of traffickers as: major, “the manufacturers or the heads of organizations, who are responsible for creating and delivering very large quantities,” “and serious,” “the managers of the retail level traffic, the person who is filling the bags of heroin, packaging crack into vials . . . and doing so in substantial street quantities.” Id.
[63] Id. at 35; see Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 608, 100 Stat. 3207; see also David H. Angelia, Note, A “Second Look” at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection, 34 Am. Crim. L. Rev. 1211, 1227 n.135 (1997).
[64] See 1995 USSC Report, supra note 57, at 117, 120.
[65] Spade, supra note 61, at 1251.
[66] See 132 Cong. Rec. 22,993 (1986) (statement of Rep. LaFalce regarding H.R. 5484).
[67] Spade, supra note 61, at 1252.
[68] 132 Cong. Rec. 26,447 (1986) (statement of Sen. Chiles).
[69] Crack in America, supra note 55.
[70] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181.
[72] Dorothy K. Hatsukami & Marian W. Fischman, Crack Cocaine and Cocaine Hydrochloride: Are the Differences Myth or Reality?, 276 J. Am. Med. Ass’n 1580, 1580 (1996).
[73] See also Crack in America, supra note 55, at 4.
[74] Pub. L. No. 103-322, § 280006, 108 Stat. 2097 (1994) (codified as amended at 42 U.S.C. §§ 13701–14223 (2012)). The 1994 Crime Bill addressed many criminal law issues, one of which was the 100 to one ratio. Section 280006 of the 1994 Crime Bill provided:
Not later than December 31, 1994, the United Sates Sentencing Commission shall submit a report to Congress on issues relating to sentences applicable to offenses involving the possession or distribution of all forms of cocaine. The report shall address the difference in penalty levels that apply to different forms of cocaine and include any recommendations that the Commission may have for retention or modification of such differences in penalty levels.
Id.
[75] U.S. Sentencing Comm’n, 1997 Report to the Congress: Cocaine and Federal Sentencing Policy 1 (1997) [hereinafter 1997 USSC Report].
[76] See Amendments to the Sentencing Guidelines for the United States Courts, 60 Fed. Reg. 25,074, 25,076 (proposed May 10, 1995).
[77] Pub. L. No. 104-38, § 1, 109 Stat. 334, 334 (1995) (“An Act [t]o disapprove of amendments to the Federal Sentencing Guidelines relating to lowering of crack sentences . . . .”).
[80] 1997 USSC Report, supra note 75, at 2.
[82] Elizabeth Tison, Comment, Amending the Sentencing Guidelines for Cocaine Offenses: The 100-to-1 Ratio Is Not as “Cracked” Up as Some Suggest, 27 S. Ill. U. L.J. 413, 427 (2003).
[83] U.S. Sentencing Comm’n, 2002 Report to the Congress: Federal Cocaine Sentencing Policy E-1–6 (2002).
[89] Benjamin Shatz, Justice Anthony Kennedy at Pepperdine, L.A. Cty. Bar Assoc.: en Banc (Feb. 9, 2010, 9:24 AM), https://lacbablog.typepad.com/enbanc/2010/02/justice-anthony-kennedy-at-pepperdine.html [https://perma.cc/PU9T-B5UM].
[90] Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sent’g Rep. 180 (1999).
[91] William H. Rehnquist, Luncheon Address (June 18, 1993), in U.S. SENTENCING COMM’N, DRUGS & VIOLENCE IN AMERICA: PROCEEDINGS OF THE INAUGURAL SYMPOSIUM ON CRIME AND PUNISHMENT IN THE UNITED STATES: JUNE 16-18, 1993, WASHINGTON D.C. 286 (1993).
[92] Blakely v. Washington, 542 U.S. 296 (2004).
[95] Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).
[96] Blakely, 542 U.S. at 313.
[97] United States v. Booker, 543 U.S. 220 (2005).
[100] 18 U.S.C. § 3553(a) (2012).
[101] Booker, 543 U.S. at 259–60.
[102] Rita v. United States, 551 U.S. 338 (2007).
[105] Sessions, supra note 44, at 315.
[107] For example, if an offender qualifies for the “safety valve” or is granted a government sponsored downward departure, a judge would be able to sentence the offender below the statutory mandatory minimum.
[108] Sessions, supra note 44, at 336.
[110] United States v. Booker, 543 U.S. 220 (2005).
[111] U.S. Sentencing Comm’n, Cocaine and Federal Sentencing Policy 1 (2007) [hereinafter 2007 USSC Report], https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/200705_RtC_Cocaine_Sentencing_Policy.pdf [https://perma.cc/CEJ6-G5QV].
[113] U.S. Sentencing Comm’n, “Reader-Friendly” Version of Amendments on Crack Cocaine and Retroactivity (Effective May 1, 2008) (2008), [hereinafter 2008 USSC Amendments], https://ww.ussc.gov/guidelines/amendments/reader-friendly-version-amendments-crack-cocaine-and-retroactivity-effective-may-1-2008 [https://perma.cc/4UQD-JBEW] (also known as Crack -2); see also 2007 USSC Report, supra note 111, at 9.
[114] 2007 USSC Report, supra note 111, at 9.
[116] 2008 USSC Amendments, supra note 113, at 1.
[117] U.S. Sentencing Comm’n, Preliminary Crack Cocaine Retroactivity Data Report tbl.2 (2011), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/2007-crack-cocaine-amendment/20110600_USSC_Crack_Cocaine_Retroactivity_Data_Report.pdf [https://perma.cc/DXU6-BC7J].
[118] Kim Steven Hunt & Andrew Peterson, U.S. Sentencing Comm’n, Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment 1–2 (2014), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/20140527_Recidivism_2007_Crack_Cocaine_Amendment.pdf [https://perma.cc/HXG5-CKZ5].
[119] PEW, One in 100: Behind Bars in America 2008 (2008), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/onein100pdf.pdf [https://perma.cc/AD7L-S4V3].
[125] Id. at 4, 11 (“Last year, they spent more than $44 billion, a 315 percent jump, data from the National Association of State Budget Officers show.”).
[130] Suzanne M. Kirchhoff, Cong. Research Serv., R41177, Economic Impacts of Prison Growth (2010), https://fas.org/sgp/crs/misc/R41177.pdf [https://perma.cc/ZXK3-9J7Q].
[131] Press Release, The White House, Fact Sheet: President Bush Signs Second Chance Act of 2007 (Apr. 9, 2008), https://georgewbush-whitehouse.archives.gov/news/releases/2008/04/20080409-15.html [https://perma.cc/BDD8-WA32].
[132] Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008); Press Release, The White House, supra note 131.
[133] Nat’l Reentry Resource Ctr., The Second Chance Act (2018), https://csgjusticecenter.org/wp-content/uploads/2018/07/July-2018_SCA_factsheet.pdf [https://perma.cc/5UF5-MZ47].
[137] Sari Horwitz & Wesley Lowery, Obama’s Crusade Against a Criminal Justice System Devoid of ‘Second Chances,’ Wash. Post (Apr. 22, 2016), https://www.washingtonpost.com/graphics/national/obama-legacy/racial-profiling-criminal-justice-reform.html [https://perma.cc/MEW8-K395].
[138] Id.; see also Smart on Crime, supra note 5.
[139] Unfairness in Federal Cocaine Sentencing: Is It Time to Crack the 100 to 1 Disparity?: Hearing Before the Subcomm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 32 (2009) (statement of Lanny A. Breuer, Assistant Attorney General, Criminal Division, U.S. Department of Justice).
[140] Smart on Crime, supra note 5.
[141] Compare Smart on Crime, supra note 5, with Press Release, The White House, Remarks by the President at the NAACP Conference (July 14, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/07/14/remarks-president-naacp-conference# [https://perma.cc/5EA2-X6NB].
[142] Smart on Crime, supra note 5.
[143] Memorandum from Eric Holder, Att’y Gen., Dep’t of Justice, to U.S. Att’ys & Assistant Att’y Gen. for the Criminal Div., Dep’t of Justice (Aug. 12, 2013), https://www.justice.gov/sites/default/files/ag/legacy/2014/04/11/ag-memo-drug-guidance.pdf [https://perma.cc/DP5F-FQXR].
[144] Smart on Crime, supra note 5; see also Dep’t of Justice, Smart on Crime: Reforming the Criminal Justice System for the 21st Century (2013), https://www.justice.gov/sites/default/files/ag/legacy/2013/08/12/smart-on-crime.pdf [https://perma.cc/M5N4-P5PL].
[145] Smart on Crime, supra note 5.
[146] Press Release, U.S. Dep’t of Justice, New Smart on Crime Data Reveals Federal Prosecutors Are Focused on More Significant Drug Cases and Fewer Mandatory Minimums for Drug Defendants (Mar. 21, 2016), www.justice.gov/opa/pr/new-smart-crime-data-reveals-federal-prosecutors-are-focused-more-significant-drug-cases-and [https://perma.cc/57BR-UHWP].
[147] Memorandum from Michael E. Horowitz, Inspector Gen., Dep’t of Justice, to Att’y Gen. & Deputy Att’y Gen., Dep’t of Justice (Dec. 11, 2013).
[148] Andrew Cohen, Obama’s Prison Crisis, Marshall Project (Nov. 17, 2014, 5:28 PM), https://www.themarshallproject.org/2014/11/17/a-crisis-at-the-bureau-of-prisons-persists-says-doj-watchdog[https://perma.cc/79WW-PK2Q]; Memorandum from Michael E. Horowitz, Inspector Gen., Office of the Inspector Gen., to the Att’y Gen., Top Management and Performance Challenges Facing the Department of Justice (Nov. 10, 2015), https://oig.justice.gov/challenges/2015.pdf#nameddest=1 [https://perma.cc/HU5F-NUDT].
[149] President Barack Obama, State of the Union Address (Jan. 13, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/01/12/remarks-president-barack-obama-–-prepared-delivery-state-union-address [https://perma.cc/N55X-FR78]; see also Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017) [hereinafter Obama Final Commutations], https://www.washingtonpost.com/world/national-security/obama-grants-final-330-commutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=.9469cf406f07 [https://perma.cc/K9LV-MJDD].
[150] Press Release, The White House, supra note 141.
[153] Horwitz & Lowery, supra note 137.
[154] Obama Final Commutations, supra note 149.
[158] Press Release, The White House, President Obama Grants Pardons and Commutation (Dec. 19, 2013), https://obamawhitehouse.archives.gov/the-press-office/2013/12/19/president-obama-grants-pardons-and-commutation [https://perma.cc/5CP8-JEVY].
[160] Clemency Initiative, U.S Dep’t Justice, https://www.justice.gov/pardon/clemency-initiative [https://perma.cc/72Y9-JSKR] (last updated Dec. 11, 2018).
[162] Clemency Project Overview and FAQs, Nat’l Ass’n Crim. Def. Laws., https://www.nacdl.org/clemencyproject [http://web.archive.org/web/20161130141855/https://www.nacdl.org/clemencyproject].
[163] Clemency Project 2014, Nat’l Ass’n Crim. Def. Law., https://www.nacdl.org/cp2014 [http://web.archive.org/web/20190826235500/https://www.nacdl.org/cp2014].
[164] Obama Final Commutations, supra note 149.
[166] U.S. Sentencing Comm’n, Report to Congress: Impact of the Fair Sentencing Act of 2010 (2015), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/201507_RtC_Fair-Sentencing-Act.pdf [https://perma.cc/S7X3-QFHL].
[167] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.
[168] Actions Overview S.1789—111th Congress (2009-2010), Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/1789/actions?q=%7B%22search%22%3A%5B%22Fair+Sentencing%22%5D%7D&r=1&s=7 [https://perma.cc/Y5R6-RPPA].
[169] Dorsey v. United States, 567 U.S. 260 (2012).
[171] 1995 USSC Report, supra note 57.
[172] U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy (2007), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/200705_RtC_Cocaine_Sentencing_Policy.pdf [https://perma.cc/TQ44-F4WS].
[173] Press Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment to the Federal Sentencing Guidelines Retroactively (June 30, 2011), https://www.ussc.gov/about/news/press-releases/june-30-2011 [https://perma.cc/LAV8-H39M].
[177] U.S. Sentencing Comm’n, Final Crack Retroactivity Data Report: Fair Sentencing Act tbl.8 (2014) [hereinafter Final Crack Retroactivity Report], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/fair-sentencing-act/Final_USSC_Crack_Retro_Data_Report_FSA.pdf [https://perma.cc/6W3G-FG9S].
[178] Press Release, U.S. Sentencing Comm’n, supra note 173.
[179] Final Crack Retroactivity Report, supra note 177, at tbl.1.
[181] Press Release, U.S. Sentencing Comm’n, supra note 173.
[182] Will Matthews, Profile from the War on Drugs: Hamedah Hasan, ACLU (June 15, 2011, 11:27 AM), https://www.aclu.org/blog/speakeasy/profile-war-drugs-hamedah-hasan [https://perma.cc/W8G3-B9E9].
[183] Hamedah’s Story, Dear Mr. President . . . yes you can, http://www.dearmrpresidentyesyoucan.org/hamedah.html [https://perma.cc/5X8G-VSKX].
[184] Letter from Jonathan J. Wroblewski, Dir., Office of Policy & Legislation, U.S. Dep’t of Justice, to the Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (July 11, 2013), https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20130801/Public_Comment_DOJ_Proposed_Priorities.pdf [https://perma.cc/FF43-8G6R].
[185] Patti B. Saris, A Generational Shift for Federal Drug Sentences, 52 Am. Crim. L. Rev. 1, 9 n.42 (2014).
[186] Letter from Laura W. Murphy et al., Dir., Wash. Legislative Office, Am. Civil Liberties Union, to the Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (July 15, 2013), https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20130801/Public_Comment_ACLU_Proposed_Priorities.pdf [https://perma.cc/R765-6ZDJ].
[187] Michael Pope, Why More Federal Prisoners Will Be Released in Virginia than D.C., Maryland, WAMU 88.5 (Nov. 6, 2015), https://wamu.org/story/15/11/06/why_virginia_will_see_more_prisoners_released_as_part_of_effort_to_curb_mass_incarceration [https://perma.cc/G794-XGD9].
[188] Jerry Markon & Rachel Weiner, Thousands of Felons Could Have Drug Sentences Lessened, Wash. Post (July 18, 2014), https://www.washingtonpost.com/politics/thousands-of-felons-could-have-drug-sentences-lessened/2014/07/18/4876209e-0eb1-11e4-8341-b8072b1e7348_story.html [https://perma.cc/N2ZJ-98US].
[189] Compare Patti Saris, The First Step Act Is a Major Step for Sentencing Reform, Law 360 (Apr. 28, 2019, 8:02 PM), https://www.law360.com/articles/1153056/the-first-step-act-is-a-major-step-for-sentencing-reform [https://perma.cc/7ZKN-T4GP], with Memorandum from Office of Research & Data, U.S. Sentencing Comm’n, to the Honorable Patti B. Saris, Chair, Comm’rs, & Kenneth Cohen, U.S. Sentencing Comm’n (July 25, 2014), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20140725-Drug-Retro-Analysis.pdf [https://perma.cc/P47X-XY3N].
[190] Memorandum from Office of Research & Data, supra note 189.
[191] Press Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences (July 18, 2014), https://www.ussc.gov/sites/default/files/pdf/news/press-releases-and-news-advisories/press-releases/20140718_press_release.pdf [https://perma.cc/X8DP-FQRV] (“[A] bed year is the equivalent of one federal prisoner occupying a prison bed for a year.”).
[192] U.S Sentencing Comm’n, 2014 Drug Guidelines Amendment: Retroactivity Data Report (2018), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20180829-Drug-Retro-Analysis.pdf [https://perma.cc/CXU7-84MR].
[193] Smarter Sentencing Act of 2014, S. 1410, 113th Cong. (2014).
[196] Letter from Leadership Conference on Civil & Human Rights to Chuck Grassley et al., Chairmen & Ranking Members, Judiciary Comms., U.S. Senate & House of Representatives (Mar. 27, 2015), https://www.brennancenter.org/sites/default/files/analysis/SSA%20Sign-on%20from%20Sentencing%20Reform%20Groups.pdf [https://perma.cc/Q5TK-2Z4U].
[197] Press Release, Senator Chuck Grassley, Hatch Endorses Grassley’s Sentencing Reform and Corrections Act (June 22, 2018), https://www.grassley.senate.gov/news/news-releases/hatch-endorses-grassley-s-sentencing-reform-and-corrections-act [https://perma.cc/QB4L-G6GZ].
[198] Sentencing Reform Act of 2015, H.R. 3713, 114th Cong. (2015); Press Release, Senator Chuck Grassley, supra note 197.
[199] Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. (2015); H.R. 3713.
[201] A provision in the bill would correct an inconsistency in current law which results in the statutory maximum of ten years under the Armed Career Criminal Act (ACCA) being less than the mandatory minimum of fifteen years under the law. Senate Bill 2123 and House Bill 3713 increase the statutory maximum for the unlawful possession of a firearm from ten to fifteen years, while also reducing the mandatory minimum under the ACCA from fifteen to ten years. This change would have been retroactive, except for people who have prior convictions for serious violent felonies.
[202] S. 2123. A later version of SRCA eliminated the ACCA provisions and retroactivity of § 924(c) gun stacking charges.
[203] Shawn Boburg, For Trump Son-in-Law and Confidant Jared Kushner, a Long History of Fierce Loyalty, Wash. Post (Nov. 27, 2016), https://www.washingtonpost.com/politics/in-fathers-scandal-the-genesis-of-jared-kushners-unflinching-loyalty/2016/11/27/1e9497ba-b378-11e6-840f-e3ebab6bcdd3_story.html?utm_term=.1cd9e7a632bb [https://perma.cc/2UA5-UY3R].
[204] President Donald J. Trump, State of the Union Address (Jan. 30, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address [https://perma.cc/JD48-9E8H].
[205] Letter from the Justice Roundtable to Charles Grassley, Chairman, Comm. on the Judiciary, U.S. Senate, & Dianne Feinstein, Ranking Member, Comm. on the Judiciary, U.S. Senate (Feb. 14, 2018), https://www.brennancenter.org/sites/default/files/analysis/SRCA_2017_Justice_Roundtable_Sign-On_letter.pdf [https://perma.cc/LRG9-U4XX].
[206] First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
[210] Letter from The Leadership Conference on Civil and Human Rights, supra note 9 (stating that groups such as the ACLU, NAACP LDF, and NAACP opposed House Bill 5682).
[213] Eli Watkins, Bureau of Prisons Ending Contracts with 16 Halfway Houses, CNN (Nov. 20, 2017, 5:04 PM), https://www.cnn.com/2017/11/20/politics/bureau-of-prisons-mark-inch-jeff-sessions/index.html [https://perma.cc/D45N-4MAE].
[214] Letter from The Leadership Conference on Civil and Human Rights, supra note 9.
[215] Letter from Stephen E. Boyd, supra note 8.
[216] Letter from Senator Richard J. Durbin et al. to Members of U.S. Congress (May 17, 2018), https://www.durbin.senate.gov/imo/media/doc/FIRST%20STEP%20Act%20Dear%20Colleague%20with%20Attachments.pdf [https://perma.cc/R4HA-W22U].
[217] Alexander Bolton, Trump Gives Thumbs Up to Prison Sentencing Reform Bill at Pivotal Meeting, Hill (Aug. 3, 2018, 6:00 AM), https://thehill.com/homenews/senate/400176-trump-gives-thumbs-up-to-prison-sentencing-reform-bill-at-pivotal-meeting [https://perma.cc/9K9B-K6PJ].
[218] First Step Act of 2018, Pub. L. No. 115-391, tit. V, 132 Stat. 5194, 5222–37.
[219] Actions Overview S.756—115th Congress (2017-2018), Congress.gov, https://www.congress.gov/bill/115th-congress/senate-bill/756/actions [https://perma.cc/CRG7-P24C].
[220] U.S. Sentencing Comm’n, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/first-step-act/201900607-First-Step-Act-Retro.pdf [https://perma.cc/FZ8M-KJQ9].
[223] Frequently Asked Questions on the First Step Act, S. 756, FAMM, https://famm.org/wp-content/uploads/First-Step-Act-FAQs.pdf [https://perma.cc/KD7R-6YSH].
[224] See Justin George, First Step Offers Release for Some Prisoners—But Not Non-Citizens, Marshall Project (June 18, 2019, 6:00 AM), https://www.themarshallproject.org/2019/06/18/first-step-offers-release-for-some-prisoners-but-not-non-citizens [https://perma.cc/L6Z7-EH5L].