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It's Now Clear: The SSA Is Unnecessary

I have opposed the Smarter Sentencing Act because it's bad policy:  It turns its back on our success in reducing crime to re-embrace our past failures, and it does so because, perversely, it views the incarceration rate as more important than the crime rate.

It is now clear, however, that even accepting the arguments for the SSA on their own terms, recent developments show that the Act is unnecessary.

The primary arguments for this legislation are twofold:  First, that, with tight budgets and so much borrowing, we can't keep spending more on prisons; and second, that some mandatory minimum sentences under existing law are excessive, given the (to some) sympathetic circumstances of the defendants serving them.

Assuming agruendo (and only arguendo) that these arguments had merit last summer when support for sentencing "reform" started percolating to the surface, I have good news. Times have changed.
1.  As to the cost argument, two developments are particularly noteworthy.  First, last August, the Attorney General directed that, for roughly the set of defendants to whom the SSA would apply, federal prosecutors are no longer to seek mandatory minimum sentences. They are to do this by airbrushing from indictments the drug amounts that, if included, would require such a sentence upon conviction. This new policy, which has effectively all but eliminated mandatory minimums (since they simply don't get charged) has been the state of play for going on nine months.

Second, the Sentencing Commission recently adopted a sweeping, all-comers-accepted two-level reduction in Guidelines offense levels for SSA-type drug defendants. Although the Guidelines do not per se affect mandatory minimum sentences (statutory sentences trump guideline calculations), they will produce a significant savings in the federal prison budget by reducing the sentences of the majority of prisoners  --  a majority who are not serving mandatory minimum sentences.  As the Commission proudly announced when it promulgated the reductions, this will result in very significant savings.

The Commission's two-level reduction theoretically will not be implemented until November, but in practice it has already begun.  The Attorney General has ordered line prosecutors not to object when defense counsel seek immediate application of the reduced guidelines.  For any real-world purpose, this means that the reductions are already at work reducing costs (and reducing public safety, but that's for another post).

2.  The idea that there are dozens or hundreds of offenders serving unjust and excessive sentences is, for my money, wildly overblown.  But that's hardly the point. Assuming arguendo that the idea is correct, these circumstances will be addressed in short order by DOJ's unprecedented and aggressive clemency program.

Department documents show that the program could result in slashed sentences for up to 23,000 drug pushers.  The actual number is likely to be less than that  -- perhaps 5000  -- but in any event will take care of every "horror story" the defense bar has put out there, plus a few hundred or thousand more.

In other words, the problem  --  if "problem" is the right word  --  of "excessive" sentences is about to disappear.  The emotional engine of the Smarter Sentencing Act just ran out of gas.  Deputy Attorney General James Cole, who is swiftly and boldly advancing the clemency initiative, is the fellow who siphoned it off.

In addition, of course, lopping years from thousands of offenders' sentences will swell the savings resulting from the charging and Sentencing Commission changes noted above, changes already underway.

With these broad-brush, pro-criminal developments going on now, all within the last year, the impetus for the SSA has essentially vanished.  At the minimum, Congress should wait to see how these very significant sentencing reductions play out  --  for example, in spiking recidivism and crime rates  --  before it takes up yet more of them through the Smarter Sentencing Act.

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