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Smarter Sentencing Act Passes Senate Judicial Committee

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A significant, bipartisan federal sentencing reform bill has cleared the Senate Judiciary Committee by a 13-5 vote. The bill, S. 1410, the Smarter Sentencing Act, could result in the “biggest overhaul in federal drug sentencing in decades,” according to the Drug Policy Alliance.

Introduced by sponsors Senators Mike Lee (R-UT) and Richard Durbin (D-IL), the Act, as amended, contains several major revisions to federal punishment schemes.

First, several mandatory minimum terms would be altered, some of them involving the most common federal drug offenses. For example, the 10 year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) would be changed from 10 years to five years. Section 841(b)(1)(B), presently a five year mandatory minimum, would carry a two year minimum.

Second, the Fair Sentencing Act of 2010, which lowered certain penalties for crack cocaine offenses in recognition of racial disparities, would be applied retroactively to an estimated 8,800 federal offenders who were sentenced before its enactment.

Third, the Smarter Sentencing Act will expand the scope of the current “safety valve” exception to certain federal mandatory minimum drug penalties by allowing a wider range of eligible offenders who do not have violent, terrorism, or sex-related offenses.

Fourth, the Act will require federal agencies to compile, and make publicly available on their websites, listings of all federal criminal statutes and regulations, with information as to the “intent” element required to violate the law, addressing concerns about “overcriminalization” and unintentional violations of federal laws.

The bill is the product of an uncommon alliance of senators who don’t often agree on much: sponsors Lee and Durbin, along with co-sponsors Patrick Leahy (D-VT), Sheldon Whitehouse (D-RI), Rand Paul (R-KY), Jeff Flake (R-AZ), Angus King (I-ME), Martin Heinrich (D-NM), Dianne Feinstein (D-CA), and Ted Cruz (R-TX).

The Act does not reach as far as one proposed by Sens. Paul and Leahy last year, the Justice Safety Valve Act, which would have allowed federal judges to depart from mandatory minimum terms in the interests of justice. Still, “The Smarter Sentencing Act is the most significant piece of criminal justice reform to make it to the Senate floor in several years,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

Senator Durbin released a statement urging passage of the bill which, he said, “could save taxpayers billions in the first years of enactment.” He further said, “Mandatory minimum sentences for non-violent drug offenses have played a large role in the explosion of the U.S. prison population. Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible, and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proved not to work and cost taxpayers billions.”

Senator Lee, a Republican, agrees, calling the current sentencing scheme irrational and wasteful. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”

The ACLU’s Murphy echoes Lee’s concerns. “Extreme, one-size-fits-all sentencing has caused our federal prison population to balloon out of control, and it’s time to change these laws that destroy lives and waste taxpayer dollars.”

United States Attorney General Eric Holder has not weighed in on the Smarter Sentencing Act, but the day before the committee voted, he appeared before it and urged general reforms of the federal mandatory minimum statutes.

Holder’s advocacy for reform was the subject of a rare letter of opposition to his position from his own rank and file prosecutors. In a public statement, the National Association of Assistant U.S. Attorneys wrote, “We do not join with those who regard our federal system of justice as ‘broken’ or in need of major reconstruction. Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving.”A groundswell of support for reform could drown out the prosecutors’ satisfaction with the current regimen. “The tide has turned against policies that destroy lives and tear families apart,” said the Drug Policy Alliance’s Bill Piper, director of national affairs. “From liberal stalwarts to Tea Party favorites, there’s now consensus that our country incarcerates too many people, for too much time, at too much expense to taxpayers.” The Smarter Sentencing Act boasts a wide range of supporters, from the ACLU to Grover Norquist and others, including Heritage Action, Justice Fellowship of Prison Ministries, the NAACP, the Sentencing Project, the American Bar Association, the National Association of Criminal Defense Lawyers, and Families Against Mandatory Minimums.

In a letter to the committee signed by many of the above parties and others, advocates pointed out that the Federal Bureau of Prisons has grown by a rate of 790 percent since 1980, and now has custody of over 219,000 people, 40 percent over its capacity. President Obama’s FY 2014 budget requests $6.9 billion for the BOP, accounting for more than a quarter of the Department of Justice’s entire budget.

With strong bipartisan support, the Smarter Sentencing Act appears to many observers to have a good chance of being signed into law. A similar bill in the House, H.R. 3382, also enjoys bipartisan approval. Still not settled are possible amendments to the Senate bill that were introduced by Senator Chuck Grassley (R-IA) that would impose a new five-year mandatory minimum for sexual abuse, 10 years for interstate domestic violence, and new minimums for some terrorism offenses.

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About Christopher Zoukis

Christopher Zoukis is the author of Education Behind Bars (Sunbury Press, 2012), the Directory of Federal Prisons (Middle Street Publishing, 2014), and the forthcoming College for Convicts (McFarland and Company, 2015) and United Blood Nation: The Story of the East Coast Bloods (Headpress, 2015). He can be found online at Prisoneducation.com, Prisonlawblog.com, and christopherzoukis.com.