Senators Booker and Durbin have announced a very important bill that would eliminate mandatory minimums for crack cocaine altogether.
Mandatory Minimums, Generally
Mandatory minimums are created by congress and are enforced by prosecutors and courts. Usually a mandatory minimum is written into the law by congress. A mandatory minimum looks like this:
In the case of a violation of subsection (a) of this section involving—
280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life…
21 USC 841(b)(iii). If the prosecutor places that amount in the indictment and the grand jury does in fact indict that person and that person either pleads guilty or is found guilty of that specific amount of drugs by a jury beyond a reasonable doubt that creates a situation where there is a mandatory minimum. Obviously there are exceptions to this like the safety valve.
The Equal Bill As Pertaining to Cocaine Offenses
SEC. 2. ELIMINATION OF INCREASED PENALTIES FOR COCAINE OFFENSES WHERE THE COCAINE INVOLVED IS COCAINE BASE.
(a) CONTROLLED SUBSTANCES ACT.—The following provisions of the Controlled Substances Act (21 U.S.C. 801 et seq.) are repealed:
(1) Clause (iii) of section 401(b)(1)(A) (21 U.S.C. 841(b)(1)(A)).
(2) Clause (iii) of section 401(b)(1)(B) (21 U.S.C. 841(b)(1)(B)).
(b) CONTROLLED SUBSTANCES IMPORT AND EXPORT
ACT.—The following provisions of the Controlled Sub- stances Import and Export Act (21 U.S.C. 951 et seq.) are repealed:
(1) Subparagraph (C) of section 1010(b)(1) (21 U.S.C. 960(b)(1)).
(2) Subparagraph (C) of section 1010(b)(2) (21 U.S.C. 960(b)(2)).
(c) APPLICABILITY TO PENDING AND PAST CASES.—
(1) PENDING CASES.—This section, and the amendments made by this section, shall apply to any sentence imposed after the date of enactment of this Act, regardless of when the offense was committed.
(2) PAST CASES.—In the case of a defendant who, before the date of enactment of this Act, was convicted or sentenced for a Federal offense involving cocaine base, the sentencing court may, on motion of the defendant, the Bureau of Prisons, the attorney for the Government, or on its own motion, impose a reduced sentence after considering the factors set forth in section 3553(a) of title 18, United States Code.
So it completely eliminates mandatory minimums for crack altogether.
Impact of this Bill on Mandatory Minimums
So the way that I read this bill is that…it completely eliminates mandatory minimums for crack. This is because the text surrounding the crack mandatory minimums would be eliminated whereas the other mandatory minimums would be present.
If they were going to do it equally, they would do something like a mandatory minimum of 5 years if there are 500 grams of crack on the indictment and a mandatory minimum of 10 years if there are 5 kilos of crack on the indictment.
There is also a retroactivity provision in this bill. So if this were to pass a person could file a motion for a reduction citing this law. They would have to prove that they are an appropriate candidate under the 3553(a)factors.
Likelihood of Passage
Will this bill pass? I sure would like for this to happen! Mandatory minimums are not necessary. That is something that we made up.
This bill feels to me like everyone is going to wake up, realize the error and amend it before the bill passes.
But maybe they won’t? Other criminal legislation has been passed that gives the impression that no one asked a criminal defense lawyer before they tried to do it.
For now the bill is great. If the bill were to be amended for a 1:1 disparity that would also be great.