December 2015: Criminal Sentencing Proposals Emerge in Congress

Washington Watch | December 2015
By Bruce Moyer

Bipartisan criminal justice reform bills have emerged in the Senate and the House of Representatives that, if enacted, would bring about significant change in the federal sentencing and prison systems. The proposals are the product of prodigious efforts by lawmakers and interest groups on the right and left seeking to reduce federal prison time for drug-trafficking offenders, release prisoners early, and reduce the size and cost of the federal prison population. The changes center especially on the mandatory minimum sentencing requirements that have been a key part of federal crime laws for more than 30 years.

Senate and House Bills
In the Senate, Judiciary Committee Chairman Charles Grassley has joined with a bipartisan group of senators to introduce the Sentencing Reform and Corrections Act of 2015, S. 2123. The comprehensive measure would shorten the length of mandatory sentences for repeat drug-trafficking offenders and end the federal “three strikes” mandatory life provision. It also would expend judicial discretion under the “safety valve” in the current federal sentencing framework, permitting federal judges to sentence less time to traffickers who did not play a high-level role in a criminal organization.

Some of the Senate bill’s changes also would apply retroactively, allowing inmates currently incarcerated because of stiffer laws to request that judges reduce their sentences and authorize an earlier release. Low-risk prisoners also could qualify for early release under a new system proposed under the bill that would reward reductions in time served for good behavior in prison and participation in prison training programs.

Over in the House of Representatives, a narrower bill, the Sentencing Reform Act, H.R. 3713, has been introduced by Judiciary Committee Chairman Bob Goodlatte (R-VA) and a bipartisan group of House members. The measure is similar to the sentencing provisions contained in the Senate bill but would ratchet back the availability of retroactive application for violent offenders. Although Goodlatte’s bill does not establish a new system for incentivizing prisoner releases, Goodlatte has indicated that his House panel was preparing to roll out a series of separate measures addressing prisons and over-criminalization soon.

Support and Criticism
Voices calling for sentencing reform have ranged from religious leaders to former House Speaker Newt Gingrich to political mega-donors Charles and David Koch. Proponents believe that the mandatory minimum sentences established in the 1980s for drug trafficking are excessive and have produced large collateral burdens upon society. They point to the high numbers of incarcerated blacks, the toll upon their families, and the accelerating costs to taxpayers of prisons filled beyond capacity. Sentencing and prison reforms adopted in some states over the last decade, they say, offer models for change at the federal level.

Critics of the Senate and House proposals, notably federal law enforcement officers and prosecutors, believe that the current system is not broken and that the gains that have been made in bringing crime rates to their lowest levels in three decades stand as proof. Prosecutors worry that the proposed changes to mandatory minimums will severely diminish the incentive of accused drug traffickers to cooperate and provide substantial assistance to law enforcement in return for significant reductions in their sentences. They also point to initiatives already on the way, generated by U.S. Sentencing Commission changes in the sentencing guidelines last year, that will trigger the early release of 46,000 federal inmates over the coming years, beginning with the release of more than 6,000 drug-trafficking offenders this fall and another 8,000 over the next year, without Congress enacting legislation.

The Federal Bar Association “supports efforts to advance fairness and consistency in federal sentencing, while preserving judicial independence and discretion to deal with the particular circumstances of individual cases,” according to its Issues Agenda.

Changing Public Attitudes
The national debate over criminal justice reform comes amid other developments, including heightened scrutiny of law enforcement and its role in maintaining public safety and preserving civil liberties. Changing public attitudes also reflect a new overlap in thinking by those on the right who believe government has intruded too far upon the rights of the governed, and those on the left who believe too many people have been locked up for “nonviolent” drug crimes, resulting in “mass incarceration.” Libertarian approaches to criminal justice, once unacceptable in “tough on crime” circles during Ronald Reagan’s era, receive wider acceptance today.

The legislative proposals under consideration by Congress address only the federal criminal justice system, not the states. The vast majority of the American prison population resides in state and local prisons and jails, many for drug possessory crimes. Only one-tenth of the 2 million prisoners in the United States are federal prisoners, and of those, approximately half were convicted for drug trafficking, not mere drug possessory crimes. Recidivism among drug traffickers is high; according to the U.S. Sentencing Commission, one out of every two released drug traffickers is back behind bars within five years for selling or distributing significant quantities of heroin, meth, PCP, and other dangerous drugs.

Repairing the federal criminal justice system will require ways to assure that justice is served and that prisons do a better job at not only incapacitating but also rehabilitating. Whether Congress lives up to the challenge of producing meaningful criminal justice legislation, as an election year begins, remains to be seen.
Bruce Moyer is government relations counsel for the FBA. © 2015 Bruce Moyer. All rights reserved.

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