In a recent pair of drug-related cases, the Supreme Court ruled that federal sentencing guidelines are advisory and judges do not have to follow them in every case (U.S. v. Booker and U.S. v. Fanfan). This ruling, which surprised many, holds both promise and danger, depending on what Congress does.

If legislators overreact and seek quick fixes, they will most likely end up exacerbating problems, such as racial disparities, unnecessary "federalization" of crime and the incarceration of innocent people. If they move slowly and work together, they could pass legislation that would save money and increase public safety.

Legislators should keep five things in mind:

  • The ruling affects only federal sentencing guidelines, which are developed by the U.S. Sentencing Commission to help judges impose fair sentences. It does not affect any statutory penalties Congress has enacted, including mandatory minimums, which trump the guidelines and force judges to impose often very lengthy pre-determined sentences.


  • Judges will continue to apply the guidelines in most cases, so the ruling does not create any immediate problems requiring Congress to respond.


  • If legislators do respond, they should not enact any new mandatory minimums because the consensus of criminal justice experts is they have done much more harm than good.


  • Any attempt to overhaul federal sentencing must include reform of drug laws, which are responsible for the most egregious inequities in our criminal justice system. Mandatory minimum sentences and federal prosecution of low-level offenses are driving the rapid expansion of the federal prison system. More than half of federal prisoners are drug offenders and their incarceration costs taxpayers about $3 billion a year.


  • Members of Congress need not debate reform in the dark. A growing number of states already have reformed their drug laws, including Arizona, California, Kansas, Louisiana, Maryland, New Mexico, New York and Texas. These states prove it is possible to both save money and improve public safety.


    • Real reform should include:

    Reprioritizing resources toward high-level traffickers, violent criminals and terrorists. Too many federal resources are wasted on low-level drug offenses that already are illegal under state law.

    Diverting non-violent offenders to drug treatment instead of prison. Treatment is cheaper and more effective at reducing recidivism. Reforming harsh drug laws that punish non-violent drug offenders more severely than rapists and murderers. Congress should eliminate mandatory minimum sentences for non-violent drug offenses and direct the U.S. Sentencing Commission to develop appropriate sentences.

    Eliminating the 100-to-1 sentencing disparity between crack and powder cocaine offenses. This should be done by lowering the draconian crack penalties to equal those of powder. Congress should not increase penalties for powder offenses.

    Fixing drug conspiracy laws so offenders are punished only for the crimes they commit, not the crimes of people they associate with. In particular, Congress should ensure that abused or misguided women are not punished for the offenses of their husbands and boyfriends.

    Preventing people from being sent to prison because of unproven accusations. Congress should require collaborating evidence in all drug cases to prevent people from be convicted based solely on the word of one person (an informant who is paid for each person convicted or a drug offender getting a reduced sentence for testifying against others).

    Repealing federal bans that deny student loans, welfare and other benefits to former offenders. Congress should encourage – not prevent – drug offenders from getting their lives back together.

    If members of Congress look to the states for guidance, they can pass bipartisan legislation to make our federal justice system fairer, cheaper and more effective at reducing crime.