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Tailored Fix to Enhancements Under 21 U.S.C. 841 and 851 Is Common Sense

One sentencing reform provision considered for inclusion in a reform package as part of a deal to move President Trump’s priority legislation, the FIRST STEP Act, through the Senate is a set of modifications to 21 U.S.C. 841, addressing drug penalties for offenses involving controlled and counterfeit substances.

According to the United States Sentencing Commission’s 2017 Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System, 21 U.S.C. 814(b)(1)(A) and (B) are two of “the top five most frequent statutes of conviction carrying a mandatory minimum penalty.” Therefore, it is of high priority to ensure that the penalties mandated under these two provisions are fair and do not result in unnecessary over-incarceration of individuals who do not pose true public safety threats.

Modifications to this section of the legal code have been part of many past proposals for sentencing reform in both chambers of Congress, including the Sentencing Reform and Corrections Act in the 114th Congress (S. 2123) and the 115th Congress (S. 1917), the Sentencing Reform Act in the 114th Congress (H.R. 3713), and the Smarter Sentencing Act in the 114th Congress (H.R. 920/S. 502) and the 115th Congress (S. 1933).

Outlined in 21 U.S.C. 841 are a set of offenses and penalties for individuals who “knowingly or intentionally...manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or...create, distribute, dispense, or possess with intent to distribute or dispense, a counterfeit substance,” with certain triggering amounts outlined for various substances.

Most notable under this section, however, is not the penalties for initial offense, but the enhanced penalties for existing prior “felony drug offense” convictions that have become final. Sentencing enhancements under 841 are made possible by 21 U.S.C. 851, which authorizes federal prosecutors to use prior felony drug convictions to increase sentences in current cases. Therefore, the frequently proposed modifications in the aforementioned pieces of legislation are often referred to as a fix to “841/851.”

Firstly, proposed modifications to 21 U.S.C. 841 would alter the prior convictions that would trigger enhanced mandatory minimum sentences under the law. Instead of a simple “felony drug offense” triggering the enhanced sentence, only a “serious drug felony” would mandate a former drug offender receive the enhanced sentence. It also adds a category of former offenders -- those who have a prior “serious violent felony” -- to the population that would receive an enhanced sentence under the law.

This modification ensures that the most potentially dangerous individuals are receiving sentencing enhancements, while those who are not do not take valuable prison resources away from “serious” offenders. This is a common-sense change that ensures resources are used wisely, in a way that will ensure taxpayer dollars are spent to most benefit public safety.

Additionally, the frequently-proposed modifications to 21 U.S.C. 841 include a reduction in certain, but not all, mandatory minimum sentences that result from the presence of a qualifying prior conviction. The proposed modifications affect mandatory minimum sentences under subparagraph (A) of 841, but do not affect subparagraph (B).

Under subparagraph (A), an individual who “commits such a violation after a prior conviction for a felony drug offense has become final” faces a mandatory minimum sentence of 20 years, and an individual who “commits such a violation after two or more prior convictions for a felony drug offense have become final” faces a mandatory minimum sentence of life imprisonment. A first time offender under the same subparagraph faces a mandatory minimum sentence of 10 years.

The proposed changes of the fix to 841/851 are minor. The mandatory minimums would be reduced from 20 years to 15 years for one prior conviction, and from life imprisonment to 25 years for two or more prior convictions. There is no change proposed to the mandatory minimum sentence for a first offense. Thought about practically, this is not a substantial change to be cause for any concern. Reductions in mandatory minimum sentences do not mandate shorter sentences if the judge determines that the facts of a case require lengthier punishment.

In fact, when paired with the reforms of the FIRST STEP Act, the overwhelming hope is that enhanced sentences for prior convictions will become less and less frequently used anyway, as inmates will return to society upon completion of their sentences and never reoffend. Lowering recidivism rates will dramatically decrease the use of 851 prosecutorial authority. This is a good thing for taxpayers, for communities, and for the integrity of our justice system.

By providing evidence-based, individually tailored programming to prisoners in BOP custody, perhaps the use of enhancements under 21 U.S.C. 841 will inevitably wane. When prisoners are able to return to society as productive, taxpaying, law-abiding, and dignified citizens and offered the opportunity to succeed, enhanced penalties for prior convictions will become a thing of the past.

In any case, the fix to 841/851 is a common sense change that will refocus limited prison resources by directing lengthier sentences to higher-risk offenders. Such a provision should see broad, bipartisan support as the FIRST STEP Act moves toward the finish line.