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Congress can make drug sentences shorter in zero easy steps

After November 1st, drug sentencing won't look so much like dropping the hammer.
After November 1st, drug sentencing won't look so much like dropping the hammer.
Tony Avelar/Christian Science Monitor

Congress is extremely good at doing nothing. And if lawmakers can just keep that up for six more months, that could reduce the sentences of thousands of drug offenders who are currently in federal prisons.

Here's how that could happen.

Judges rely on federally-set "guidelines"

When someone is convicted of a federal crime, there are two different sets of rules that determine how long his sentence should be. First, there are "mandatory minimums" laws passed by Congress. If a suspect is convicted of a crime that Congress has set a minimum sentence length for, then, with very rare exceptions, he gets a sentence at least that long. The judge can't go any lower.

But what if Congress hasn't set a mandatory minimum sentence for the crime? Or what if the judge thinks the defendant deserves to serve more time than the bare minimum? Then the judge turns to the other set of federal sentencing rules: the  "sentencing guidelines".  These guidelines use a complicated formula to spit out a recommended range for the length of the sentence; the judge then picks a sentence length within that range that seems fair.

The sentencing guidelines aren't written by Congress; they're written by an agency called the US Sentencing Commission. For years, the Sentencing Commission set its recommended sentences for drug offenses at a rate slightly higher than the Congressionally-mandated minimum. And even though the "guidelines" are supposed to be guidelines rather than laws, judges tend to stick closely to them.

In April, members of the Sentencing Commission decided that they were treating drug offenders way too harshly. So they voted to change the guidelines for judges going forward. If all goes smoothly, as of November 1st, most people convicted of federal drug offenses will serve several fewer months in prison.

How the sentencing guidelines could change

Here's how the Commission wants to change things.

One of the variables in the complicated sentencing guidelines formula is the quantity of drugs the defendant had in his possession when he was arrested. There's a table in the sentencing guidelines manual that lists quantities of various drugs on one side, and the "base offense level" that quantity means for the sentencing formula in the other. (The more serious the crime, the higher the "base level," and the longer the recommended sentence.)

The Sentencing Commission voted to reduce the seriousness for quantities of all drugs by two "base offense levels." In practice, that means that drug sentencing recommendations would be on average 11 months shorter. If the new recommended sentence range falls below the mandatory minimum, the mandatory minimum will trump it — but that still means a defendant will be serving less time than he would if the recommended sentence were higher than the minimum.

Congress needs to let the changes through — by doing nothing

The guidelines haven't officially changed yet, though. On April 30th, the Sentencing Commission sent Congress the changes it wants to make. If Congress wants to block the guidelines, it has to take action within the next six months to officially "disapprove" them. If Congress has no problem with the guidelines, or if lawmakers just don't take action in the next six months, the new guidelines will go into effect on November 1st.

No one knows for sure whether Congress likes the proposed changes or not. And in theory, if both parties really don't want to reduce drug sentencing, they could unite and pass a "disapproval" this summer or fall. But given that bipartisan groups in both the House and the Senate are working to reduce drug sentences on the Congressional end — by reducing mandatory minimums — it doesn't seem like there's a bipartisan desire to block the new guidelines. And besides, since when does Congress act proactively on anything — much less during the months when most of them will be busy campaigning for reelection?

What about existing prisoners?

The real open question now, though, isn't something Congress has any control over: will the new guidelines apply to people currently in prison — or just new prisoners? The Sentencing Commission will be holding a series of public hearings in June on the question, and has posted the guidelines for "public comment." (Instructions for public comments are here; comments should be sent to public_comment@ussc.gov.)

It may take them several months to make their decision. In the meantime, Congress is probably going to do what Congress does best: nothing. And that would likely mean lower drug sentences for people convicted of drug offenses going forward.