Sentencing Bill Passes Key Test

Senate panel votes to cut mandatory penalties.

, The National Law Journal

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Hands of incarcerated men at D.C.'s Superior Court.
Hands of incarcerated men at D.C.'s Superior Court.

The U.S. Senate is moving forward with a major overhaul of the federal criminal sentencing laws — potentially reducing or erasing some mandatory minimum terms — amid escalating costs of running federal prisons.

Lawmakers from both parties are rallying support for the Smarter Sentencing Act of 2014, which would cut in half mandatory minimum sentences for nonviolent drug offenses and end mandatory minimums for drug offenders who lack criminal histories.

The Senate Judiciary Committee on Jan. 30 approved the bill, which now heads to the Senate floor with support from Democratic sens. Patrick Leahy (D-Vt.) and Dick Durbin (D-Ill.) and Republican sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas).

The same language, filed in the House by Rep. Raul Labrador (R-Idaho), has co-sponsors who include Rep. Spencer Bachus (R-Ala.), House Judiciary Committee ranking member Rep. John Conyers (D-Mich.) and Bobby Scott (D-Va.). That bill awaits action at the committee level.

"It's exciting and long-awaited and long overdue," said James Felman, a Florida criminal defense attorney who serves as the American Bar Association's liaison to the U.S. Sentencing Commission. "It's a good place to start. We hope that's not where they finish."

The reform push is part of a broader movement — promoted by Attorney General Eric Holder Jr. and President Obama — to loosen the stringent sentencing framework for federal drug offenses. The U.S. Department of Justice argues that the increasing cost of the federal prison system will "threaten the department's ability to fulfill its ­mission in other areas."

Supporters of the legislation include the sentencing commission, the U.S. Judicial Conference, the ABA, the Association of Prosecuting Attorneys, civil rights groups and the Major Cities Police Chiefs Association, Durbin said.

U.S. District Chief Judge Patti Saris of Massachusetts, chairwoman of the sentencing commission, in a written statement last week called the legislation "an important first step toward addressing rising federal prison costs and a federal prison population that far exceeds capacity."

RISING COSTS

The government spends $6.4 billion annually on federal prisons, about 25 percent of the Justice Department's budget. The cost has grown by nearly $2 billion during the past five years, and the increasing financial demand means less money for police on the streets and crime-prevention programs, Leahy said. Pretrial detention costs in 2001 were $617 million, according to DOJ. They now have risen to $1.5 billion.

The Smarter Sentencing Act would save the department $3 billion over 10 years, according a report the Urban Institute published in November.

The legislation would reduce mandatory minimums for specific crimes under the Controlled Substances Act and the Controlled Substances Import and Export Act — from 20 years to 10, from 10 years to five and from five years to two. It would not lower the maximum sentences.

The bill would eliminate mandatory minimums for defendants who lack serious criminal histories. Among other factors, such defendants could not have prior convictions for crimes that involved violence or firearms.

"If you look back, as I have, at the debate on mandatory minimums, the goal was to nail the kingpins and break up these drug cartels," said Durbin, who introduced the legislation with Lee and Leahy. "What we've learned is the laws do not sufficiently separate the big-time career offenders from lower level offenders."

The legislation is not without opposition. Several Republican senators voted against the bill, and it might need changes to satisfy Democrats who fear losing some of the tools prosecutors use to take down gang and drug enterprises.

For example, Sen. Chuck Schumer (D-N.Y.) voted to move bill out of committee despite expressing reservations. He said mandatory minimum sentencing helped reduce crime in New York City and that the potential for a mandatory prison sentence can prod a low-level drug mule to testify against higher-ups in a gang or drug ring.

"Many prosecutors are worried they may no longer be able to use this tool effectively," Schumer said.

Sens. Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), Jeff Sessions (R-Ala.) and John Cornyn (R-Texas) voted against the bill. Grassley said the number of people in federal prison for simple drug possession is near zero, and the supposedly nonviolent drug offenders the bill addresses are mostly drug dealers.

"Maybe they used no violence in committing this particular crime," Grassley said. "But maybe their co-defendant carried a gun in committing this drug offense. Or maybe this drug offender committed violent offenses in the past. That violent past is relevant to the sentence the drug dealer received."

Senators on both sides of that disagreement said they would continue working on the bill before submitting the measure to a vote by the full Senate. Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said it would be a mistake for Congress to water down the reforms into something negligible.

"I think we're seeing the most momentum on this issue that we've seen in 15 years, and it's really encouraging because it's bipartisan," Gill said. "What's nice about the issue is different people can care for different reasons, and all the reasons are good reasons."

Contact Todd Ruger at truger@alm.com.

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