Smarter Sentencing Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1013 To focus limited Federal resources on the most serious offenders. IN THE SENATE OF THE UNITED STATES MARCH 25, 2021 Mr. DURBIN (for himself, Mr. LEE, Mr. LEAHY, Mr. WHITEHOUSE, Mr. WYDEN, Mr. BLUMENTHAL, Ms. BALDWIN, Mr. BOOKER, Ms. WARREN, Mr. SANDERS, Mr. KING, Mr. KAINE, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To focus limited Federal resources on the most serious offenders. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Smarter Sentencing 4 Act of 2021’’. 5 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1013 IS SEC. 2. SENTENCING MODIFICATIONS FOR CERTAIN DRUG 1 OFFENSES. 2 (a) CONTROLLED SUBSTANCES ACT.—The Con- 3 trolled Substances Act (21 U.S.C. 801 et seq.) is amend- 4 ed— 5 (1) in section 102 (21 U.S.C. 802)— 6 (A) by redesignating paragraph (58) as 7 paragraph (59); 8 (B) by redesignating the second paragraph 9 (57) (relating to ‘‘serious drug felony’’) as 10 paragraph (58); and 11 (C) by adding at the end the following: 12 ‘‘(60) The term ‘courier’ means a defendant 13 whose role in the offense was limited to transporting 14 or storing drugs or money.’’; and 15 (2) in section 401(b)(1) (21 U.S.C. 16 841(b)(1))— 17 (A) in subparagraph (A), in the flush text 18 following clause (viii)— 19 (i) by striking ‘‘10 years or more’’ 20 and inserting ‘‘5 years or more’’; and 21 (ii) by striking ‘‘15 years’’ and insert- 22 ing ‘‘10 years’’; and 23 (B) in subparagraph (B), in the flush text 24 following clause (viii)— 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1013 IS (i) by striking ‘‘5 years’’ and inserting 1 ‘‘2 years’’; and 2 (ii) by striking ‘‘not be less than 10 3 years’’ and inserting ‘‘not be less than 5 4 years’’. 5 (b) CONTROLLED SUBSTANCES IMPORT AND EXPORT 6 ACT.—Section 1010(b) of the Controlled Substances Im- 7 port and Export Act (21 U.S.C. 960(b)) is amended— 8 (1) in paragraph (1), in the flush text following 9 subparagraph (H)— 10 (A) by inserting ‘‘, other than a person 11 who is a courier,’’ after ‘‘such violation’’; 12 (B) by striking ‘‘person commits’’ and in- 13 serting ‘‘person, other than a courier, com- 14 mits’’; and 15 (C) by inserting ‘‘If a person who is a cou- 16 rier commits such a violation, the person shall 17 be sentenced to a term of imprisonment of not 18 less than 5 years and not more than life. If a 19 person who is a courier commits such a viola- 20 tion after a prior conviction for a felony drug 21 offense has become final, the person shall be 22 sentenced to a term of imprisonment of not less 23 than 10 years and not more than life.’’ before 24 ‘‘Notwithstanding section 3583’’; and 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1013 IS (2) in paragraph (2), in the flush text following 1 subparagraph (H)— 2 (A) by inserting ‘‘, other than a person 3 who is a courier,’’ after ‘‘such violation’’; 4 (B) by striking ‘‘person commits’’ and in- 5 serting ‘‘person, other than a courier, com- 6 mits’’; and 7 (C) by inserting ‘‘If a person who is a cou- 8 rier commits such a violation, the person shall 9 be sentenced to a term of imprisonment of not 10 less than 2 years and not more than life. If a 11 person who is a courier commits such a viola- 12 tion after a prior conviction for a felony drug 13 offense has become final, the person shall be 14 sentenced to a term of imprisonment of not less 15 than 5 years and not more than life.’’ before 16 ‘‘Notwithstanding section 3583’’. 17 (c) APPLICABILITY TO PENDING AND PAST CASES.— 18 (1) DEFINITION.—In this subsection, the term 19 ‘‘covered offense’’ means a violation of a Federal 20 criminal statute, the statutory penalties for which 21 were modified by this section. 22 (2) PENDING CASES.—This section, and the 23 amendments made by this section, shall apply to any 24 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1013 IS sentence imposed after the date of enactment of this 1 Act, regardless of when the offense was committed. 2 (3) PAST CASES.—In the case of a defendant 3 who, before the date of enactment of this Act, was 4 convicted or sentenced for a covered offense, the sen- 5 tencing court may, on motion of the defendant, the 6 Bureau of Prisons, the attorney for the Government, 7 or on its own motion, impose a reduced sentence 8 after considering the factors set forth in section 9 3553(a) of title 18, United States Code. 10 SEC. 3. DIRECTIVE TO THE SENTENCING COMMISSION. 11 (a) DIRECTIVE TO SENTENCING COMMISSION.—Pur- 12 suant to its authority under section 994(p) of title 28, 13 United States Code, and in accordance with this section, 14 the United States Sentencing Commission shall review and 15 amend, if appropriate, its guidelines and its policy state- 16 ments applicable to persons convicted of an offense under 17 section 401 of the Controlled Substances Act (21 U.S.C. 18 841) or section 1010 of the Controlled Substances Import 19 and Export Act (21 U.S.C. 960) to ensure that the guide- 20 lines and policy statements are consistent with the amend- 21 ments made by section 2 of this Act. 22 (b) CONSIDERATIONS.—In carrying out this section, 23 the United States Sentencing Commission shall con- 24 sider— 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1013 IS (1) the mandate of the United States Sen- 1 tencing Commission, under section 994(g) of title 2 28, United States Code, to formulate the sentencing 3 guidelines in such a way as to ‘‘minimize the likeli- 4 hood that the Federal prison population will exceed 5 the capacity of the Federal prisons’’; 6 (2) the findings and conclusions of the United 7 States Sentencing Commission in its October 2011 8 report to Congress entitled, Mandatory Minimum 9 Penalties in the Federal Criminal Justice System; 10 (3) the fiscal implications of any amendments 11 or revisions to the sentencing guidelines or policy 12 statements made by the United States Sentencing 13 Commission; 14 (4) the relevant public safety concerns involved 15 in the considerations before the United States Sen- 16 tencing Commission; 17 (5) the intent of Congress that penalties for 18 violent, repeat, and serious drug traffickers who 19 present public safety risks remain appropriately se- 20 vere; and 21 (6) the need to reduce and prevent racial dis- 22 parities in Federal sentencing. 23 (c) EMERGENCY AUTHORITY.—The United States 24 Sentencing Commission shall— 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1013 IS (1) promulgate the guidelines, policy state- 1 ments, or amendments provided for in this Act as 2 soon as practicable, and in any event not later than 3 120 days after the date of enactment of this Act, in 4 accordance with the procedure set forth in section 5 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 6 note), as though the authority under that Act had 7 not expired; and 8 (2) pursuant to the emergency authority pro- 9 vided under paragraph (1), make such conforming 10 amendments to the Federal sentencing guidelines as 11 the Commission determines necessary to achieve 12 consistency with other guideline provisions and ap- 13 plicable law. 14 SEC. 4. REPORT BY ATTORNEY GENERAL. 15 Not later than 6 months after the date of enactment 16 of this Act, the Attorney General shall submit to the Com- 17 mittees on the Judiciary of the House of Representatives 18 and the Senate a report outlining how the reduced expend- 19 itures on Federal corrections and the cost savings result- 20 ing from this Act will be used to help reduce overcrowding 21 in the Federal Bureau of Prisons, help increase proper in- 22 vestment in law enforcement and crime prevention, and 23 help reduce criminal recidivism, thereby increasing the ef- 24 fectiveness of Federal criminal justice spending. 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1013 IS SEC. 5. REPORT ON FEDERAL CRIMINAL OFFENSES. 1 (a) DEFINITIONS.—In this section— 2 (1) the term ‘‘criminal regulatory offense’’ 3 means a Federal regulation that is enforceable by a 4 criminal penalty; and 5 (2) the term ‘‘criminal statutory offense’’ 6 means a criminal offense under a Federal statute. 7 (b) REPORT ON CRIMINAL STATUTORY OFFENSES.— 8 Not later than 1 year after the date of enactment of this 9 Act, the Attorney General shall submit to the Committee 10 on the Judiciary of the Senate and the Committee on the 11 Judiciary of the House of Representatives a report, which 12 shall include— 13 (1) a list of all criminal statutory offenses, in- 14 cluding a list of the elements for each criminal stat- 15 utory offense; and 16 (2) for each criminal statutory offense listed 17 under paragraph (1)— 18 (A) the potential criminal penalty for the 19 criminal statutory offense; 20 (B) the number of prosecutions for the 21 criminal statutory offense brought by the De- 22 partment of Justice each year for the 15-year 23 period preceding the date of enactment of this 24 Act; and 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1013 IS (C) the mens rea requirement for the 1 criminal statutory offense. 2 (c) REPORT ON CRIMINAL REGULATORY OF- 3 FENSES.— 4 (1) REPORTS.—Not later than 1 year after the 5 date of enactment of this Act, the head of each Fed- 6 eral agency described in paragraph (2) shall submit 7 to the Committee on the Judiciary of the Senate and 8 the Committee on the Judiciary of the House of 9 Representatives a report, which shall include— 10 (A) a list of all criminal regulatory of- 11 fenses enforceable by the agency; and 12 (B) for each criminal regulatory offense 13 listed under subparagraph (A)— 14 (i) the potential criminal penalty for a 15 violation of the criminal regulatory offense; 16 (ii) the number of violations of the 17 criminal regulatory offense referred to the 18 Department of Justice for prosecution in 19 each of the years during the 15-year period 20 preceding the date of enactment of this 21 Act; and 22 (iii) the mens rea requirement for the 23 criminal regulatory offense. 24 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1013 IS (2) AGENCIES DESCRIBED.—The Federal agen- 1 cies described in this paragraph are the Department 2 of Agriculture, the Department of Commerce, the 3 Department of Education, the Department of En- 4 ergy, the Department of Health and Human Serv- 5 ices, the Department of Homeland Security, the De- 6 partment of Housing and Urban Development, the 7 Department of the Interior, the Department of 8 Labor, the Department of Transportation, the De- 9 partment of the Treasury, the Commodity Futures 10 Trading Commission, the Consumer Product Safety 11 Commission, the Equal Employment Opportunity 12 Commission, the Export-Import Bank of the United 13 States, the Farm Credit Administration, the Federal 14 Communications Commission, the Federal Deposit 15 Insurance Corporation, the Federal Election Com- 16 mission, the Federal Labor Relations Authority, the 17 Federal Maritime Commission, the Federal Mine 18 Safety and Health Review Commission, the Federal 19 Trade Commission, the National Labor Relations 20 Board, the National Transportation Safety Board, 21 the Nuclear Regulatory Commission, the Occupa- 22 tional Safety and Health Review Commission, the 23 Office of Compliance, the Postal Regulatory Com- 24 mission, the Securities and Exchange Commission, 25 VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1013 IS the Securities Investor Protection Corporation, the 1 Environmental Protection Agency, the Small Busi- 2 ness Administration, the Federal Housing Finance 3 Agency, and the Office of Government Ethics. 4 (d) INDEX.—Not later than 2 years after the date 5 of enactment of this Act— 6 (1) the Attorney General shall establish a pub- 7 lically accessible index of each criminal statutory of- 8 fense listed in the report required under subsection 9 (b) and make the index available and freely acces- 10 sible on the website of the Department of Justice; 11 and 12 (2) the head of each agency described in sub- 13 section (c)(2) shall establish a publically accessible 14 index of each criminal regulatory offense listed in 15 the report required under subsection (c)(1) and 16 make the index available and freely accessible on the 17 website of the agency. 18 (e) RULE OF CONSTRUCTION.—Nothing in this sec- 19 tion shall be construed to require or authorize appropria- 20 tions. 21 Æ VerDate Sep 11 2014 23:57 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S1013.IS S1013 kjohnson on DSK79L0C42PROD with BILLS