As a former state and federal prosecutor who now defends clients accused
of all types of felonies, and frequently represents clients accused of
state and federal narcotics violations, I am often asked if there are
any changes regarding mandatory minimum prison sentences for drug crimes
convictions in either jurisdiction. The short answers are yes and no.
On the state side, at least here in
As someone who has witnessed first-hand the disproportionately unfair impact of mandatory sentences on individuals and families, especially in minority communities where involvement in the drug trade is considered by some to be less of a choice and more of a necessity, to say I'm encouraged and supportive of recent changes, significant or slight, is an understatement. I'm pleased we are finally heading in the right direction in terms of both rethinking, and undoing, unduly harsh and unfair state and federal drug sentences. For anyone facing prosecution in state or federal court on drug charges, it is not only critical they know, but essential their attorney knows, the recent changes to the mandatory minimum sentence laws. These changes can be summed up as follows:
A. Federal Crack Cocaine guidelines
(as voted by Congress)
Until 2010, when Congress passed the Fair Sentencing Act ("FSA"), rock, i.e.,"crack" and powder cocaine were charged and sentenced at wildly disparate levels despite being different forms of the same drug. Each gram of crack was charged at the same level as 100 grams of cocaine. Also, simple possession of crack carried a 5 year mandatory minimum sentence. The result was that penalties for possession of crack cocaine, a drug often used by disadvantaged minorities, were much harsher than the penalties for possession of powder cocaine, whose users were typically affluent whites. Obviously, sentencing discrepancies under these laws were irrational and disproportionately hard on poor African American males.
1. When the FSA went into effect the significant changes included:
– Twenty-eight grams of crack cocaine will now trigger a five-year mandatory minimum prison sentence, and 280 grams of crack will trigger a mandatory minimum ten-year sentence;
– The five-year mandatory minimum for simple possession of crack cocaine has been eliminated;
– Based on the new mandatory minimums, the 100 to 1 quantity sentencing ratio has been reduced to about 18 to 1; and
– Penalties for what are deemed serious cases have increased.
2. Also, on July 15, 2011, Attorney General Eric Holder issued a memo to all federal prosecutors requiring the application of the Act’s new mandatory minimum sentencing provisions to all drug crimes sentencings that occur on or after the enactment date of the FSA, regardless of when the offense conduct took place. On June 21, 2012, the Supreme Court handed down its opinion in . In a 5-4 decision, the majority agreed that the FSA’s new, lower mandatory minimums for crack cocaine applies to the post-FSA sentencing of offenders whose conduct occurred before the FSA was implemented.
3. Based upon the changes under the FSA, the United States Sentencing Commission ("USSC") adopted the following amendments to the United States Sentencing Guidelines ("USSG"):
– The FSA’s new mandatory minimum levels are set to equate to the base offense levels of 26 and 32, rather than the pre-FSA levels of 24 and 30;
– A series of aggravating factors for all drug types were added. Enhancements include a 2-level increase if the defendant used, threatened or directed the use of violence; bribed or attempted to bribe a law enforcement officer; or maintained a premises to distribute or manufacture drugs. The amendments also includes a 2-level increase if “the defendant received an adjustment under 3B1.1 (Aggravating Role) and the offense involved 1 or more [super-aggravating] factors.;.
– For defendants with a minimal role in the offense, the amendment provides for a cap of 32 on the base offense level, and a 2-level reduction for defendants who have minimal knowledge of the offense, did not profit from it and were motivated by, among other things, fear or family pressure.
4. While not directly applicable to mandatory minimums, the DOJ endorsed USSC's amendment to the USSG reducing all drug crime sentences by another two guideline points. In 2007, the Commission had already lowered crack cocaine sentences by two guideline levels and then made that change retroactive. As a result, 16,500 prisoners serving prison terms for crack cocaine offenses received shorter sentence by an average of 26 months. The reduction in crack cocaine sentences that went into effect in 2010 discussed above was also made retroactive. Since then, at least 7,500 prisoners serving crack sentences have received new sentences that are, on average, 30 months shorter. The newest amendment goes into effect Nov.1. Look for another blog entry later this month discussing the latest reduction and its implications.
The net effect of this newest scheduled amendment will be to lower the recommended guideline sentences for most drug defendants by two levels in the sentencing guidelines. This means that, starting on November 1, 2014, the sentencing guidelines will use as the starting point a lower recommended sentence than the current recommended sentence. This will mean, on average, sentences that are 11 months shorter. The amendment will be applied retroactively.
5. Lastly, experienced drug crimes defense attorneys like me always need to confirm whether or not safety valve relief is also available. The "safety valve" is an exception to the mandatory minimum sentencing laws. It allows a judge to sentence a person below the mandatory minimum term if certain conditions are met. Under current federal law, the safety valve applies only to first-time, nonviolent drug offenders whose cases did not involve guns. However, while safety valve relief does not require cooperation, it does involve giving prosecutors a full and complete proffer about the offense of conviction.
1. On August 2, 2012, An Act Relative to Sentencing and Improving Law Enforcement Tools was signed into law, and took effect that same day. The new law reduced mandatory minimum sentences for drug crimes occurring on, or after August 2, 2012. It also increased the triggering weights for certain offenses. For example, a conviction for trafficking in 28 grams of cocaine under the old law would result in a mandatory minimum sentence of 5 years. Under the new law, 36 grams or more of cocaine is now required to be found guilty of the same level of trafficking, but the sentence for which has been reduced to 3½ years. Now, conviction for trafficking in 28 grams of cocaine falls within a different section of the law and results in a 2 year mandatory minimum sentence, rather than 5 under the old law.
2. For inmates already serving mandatory minimum sentences for drug crimes committed before Aug. 2, 2012, they now become eligible for parole upon completion of the term of the new mandatory minimums. So while it's not retroactive application, per se, requiring inmates to be resentenced in accordance with the new law, there is retroactive application in effect. Inmates sentenced under the old law do not necessarily have to serve the full term of the former mandatory minimum, just the new, reduced mandatory minimum, after which they become parole eligible. For example, an inmate sentenced under the old law to 10 to 12 years on a 10 year mandatory minimum is now eligible for parole at the new minimum of 8 years.
3. The new law also allows the MA Dept. of Correction and the various county sheriffs to award inmates more "good time" credits. Good time credits can be accumulated by inmates for good behavior and successful completion of various programs offered at the jails and houses of correction. These credits can ultimately be used to reduce an inmate's sentence. While they can't be used to go below the mandatory minimum, they can reduce a sentence above the mandatory minimum to the minimum.
Below is a chart summarizing the old mandatory minimums and the new ones
under the law as of Aug. 12, 2012 for various drug crimes in
94C § 32(b)
Distribution Class A (incl. manufacture or possession w/intent; 1+ prior convictions
94C § 32A(b)
Distribution Class B (incl. manufacture or possession w/intent; 1+ prior convictions
94C § 32A(c)
Distribution Class B (incl. manufacture or possession w/intent; PCP/cocaine/meth
94C § 32A(d)
Distribution Class B (incl. manufacture or possession w/intent; PCP/cocaine/meth; 1+ priors
94C § 32B(b)
Distribution Class C (incl. manufacture or possesion w/intent; 1+ prior convictions
94C § 32C(b)
Distribution Class D (incl. manufacture or possession w/intent; 1+ prior convictions
94C § 32E(a)(1)
Trafficking in marijuana, incl. mixtures – 50lbs – 100lbs
94C § 32E(a)(2)
Trafficking in marijuana, incl. mixtures – 100lbs – <2,000lbs
94C § 32E(a)(3)
Trafficking in marijuana, incl. mixtures – 2000lbs – <10,000lbs
94C § 32E(a)(4)
Trafficking in marijuana, incl. mixtures – 10,000lbs+
94C § 32E(b)(1)
Trafficking in cocaine, incl. mixtures – 18g – <36g
94C § 32E(b)(2)
Trafficking in cocaine, incl. mixtures – 36g – <100g
94C § 32E(b)(3)
Trafficking in cocaine, incl. mixtures – 100g – <200g
94C § 32E(b)(4)
Trafficking in cocaine, incl. mixtures – 200g+
94C § 32E(c)(1)
Trafficking in heroin, morphine, opium or derivatives, incl. mixtures – 18g – <36g
94C § 32E(c)(2)
Trafficking in heroin, morphine, opium or derivatives, incl. mixtures – 36g – <100g
94C § 32E(c)(3)
Trafficking in heroin, morphine, opium or derivatives, incl. mixtures – 100g – <200g
94C § 32E(c)(4)
Trafficking in heroin, morphine, opium or derivatives, incl. mixtures – 200g+
94C § 32F(a)
Distribution of Class A to person <18
94C § 32F(b)
Distribution of Class B to person <18
94C § 32F(c)
Distribution of Class C to person <18
94C § 32F(d)
Distribution of cocaine to person <18
94C § 32J
Controlled substance in, on, or near school, park or playground
94C § 32K
Inducing or abetting a person <18 to distribute or sell controlled substance
*to be served after sentence for any other drug offense
**The previous sentences were based on lesser drug weights (14-28g; 28-100g, respectively)
Class A — Heroin, morphine, codeine
Class B — Cocaine, opium, methadone, amphetamines, oxycodone, barbiturates, LSD, PCP
Class C — Certain Rx narcotics, mescaline, peyote, psilocybin
Class D — Marijuana, phenobarbital
Class E — Rx drugs mixed w/non-narcotics; other non-classified drugs
I have witnessed first-hand the ripple (and economically crippling) effect of mandatory minimum drug sentences in our trial courts and on our prison populations and, in short, on our criminal justice system. It is particularly egregious where the offense conduct is on a level of lesser culpability (i.e., a courier or small time street dealer) but the sentence imposed was akin to, or more than, that that of a supplier, importer, or even kingpin. Sentencing reforms, such as those mentioned above, are not only welcome, but necessary. Knowing what these reforms are and how they affect you (and choosing an experienced attorney who is up to date with how the laws are changing - particularly on the federal side where the changes are more subtle and nuanced) is essential. As a longtime criminal defense attorney who focuses a large percentage of my practice on defending drug cases, I will continue to advocate for sentencing reform. Until it comes, I will use my courtroom skill and experience to zealously advocate for my clients and get them home to their families as soon as possible under the laws.
About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant
District Attorney in Middlesex County (MA) where he prosecuted murders,
sex crimes and serious narcotics trafficking cases. He went on to prosecute
federal drug crimes and the mafia/organized crime as an Assistant U.S.
Attorney for the U.S. Attorney's Office in