WASHINGTON – A key Senate leader has announced that, before the end of the year, he will push to move forward on a landmark overhaul of U.S. criminal sentencing guidelines that would aim to significantly cut down the bloated population in federal prisons.
The growing interest in legislative action already constitutes a sea change in the United States’ decades-old “tough on crime” approach, and would include dialing down on long-criticized mandatory minimum sentencing guidelines for a range of nonviolent crimes. Most importantly, several new and pending proposals have garnered widespread support from across the political spectrum, leading many observers to expect some sort of legislative action on a major policy issue – needless to say, a rarity in today’s polarized Congress.
“The main drivers of prison growth are front-end sentencing laws enacted by Congress, like the proliferation of mandatory minimum sentences,” Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, stated on Wednesday at a hearing on reducing costs at the Bureau of Prisons, the second such hearing in two months.
“I am committed to addressing sentencing reform this year, as I know other senators are from both sides of the aisle. It is a problem that Congress created and it is time that we fix it. Public safety demands it.”
U.S. federal prison populations have grown by almost 800 percent over the past three decades, largely as a result of mandatory minimum sentencing, particularly for nonviolent drug crimes. Also on Wednesday, Bureau of Prisons Director Charles Samuels reported that the federal prisons system is currently operating at 140 percent of capacity, setting up a dangerous system for guards, prisoners and society at large. (An infographic detailing the situation was released this week by Boston University.)
Furthermore, just housing these prisoners now accounts for a quarter of the Bureau of Prison’s budget every year. This budgetary consideration has been central in gathering together the significant bipartisan support for a potential overhaul of how the country decides whether, and for how long, to incarcerate low-level criminals.
Leahy’s remarks come just after the House of Representatives saw the introduction of a key legislative proposal called the Smarter Sentencing Act. Identical legislation was introduced in the Senate in July (one of its sponsors is Leahy himself), underlining the seriousness with which proponents are approaching what has now become a major initiative.
Including some 219,000 federal-level inmates – a number official researchers earlier this year called “historically unprecedented” – the United States currently holds a quarter of the world’s prisoners. The most significant provisions in the Smarter Sentencing Act would target nonviolent drug offenders, which make up more than 40 percent of the federally incarcerated population.
First, the bill would make retroactive unanimously passed legislation from 2010 that reduced the mandatory minimum sentencing for crack cocaine, which would benefit an estimated 8,800 people across the country. Second, the proposal would reduce federal drug-related mandatory minimums across the board to around half the currently required time. And third, a related bill would loosen criminal history requirements for drug offenders allowed to slip in under mandatory minimums (known as the “safety valve”).
“What’s so exciting is that we’re at this point of history where the same conversations are now taking place in both the House and Senate,” Molly Gill, government affairs counsel at Families Against Mandatory Minimums (FAMM), an advocacy group, told Mint Press News.
“We’re supporting both bills, and we think reform would benefit the taxpayer, public safety, the Department of Justice, prison guards and their unions, as well as prisoners. After all, you can’t hope to rehabilitate prisoners if you’re a guard overseeing 150 prisoners – at that point, you’re just worried about counting heads. Further, all of those people will eventually come home to our communities, as well.”
Importantly, the currently pending proposals do not actually cover strengthened rehabilitation and non-prison alternatives, though bills that would do so are reportedly currently being prepared.
Draconian sentencing
Mandatory minimum sentencing guidelines – for a variety of crimes, including those that require execution – have been part of the U.S. statutes since the country’s beginning and have repeatedly withstood judicial scrutiny. Yet such guidelines were significantly expanded and strengthened during the 1970s and 1980s, particularly for drug- and gun-related crimes.
“Driven by concerns that broad discretion had led to rootless sentencing, unjustifiable in its leniency in some instances and in its severity in others, legislative bodies moved to curtail discretionary sentencing on several fronts,” states a September report from the Congressional Research Service, the legislature’s main research arm. “Determinate sentencing, sentencing commissions and guidelines, and mandatory minimum sentences became more prevalent. Parole and probation were abolished or greatly restricted in several jurisdictions.”
At the federal level, much of this tightening was codified in the Sentencing Reform Act of 1984. That not only touched off a political fight against this tougher approach, but also initiated a body of evidence that has only become widely accepted in recent years.
That acceptance has undoubtedly been helped along by the United States’ fiscal problems in the aftermath of the 2008-09 financial crisis. While the U.S. prison system cost the cash-strapped country some 80 billion dollars in 2010, between 40 and 60 percent of inmates are rearrested within three years of their release, according to official estimates.
In August, Attorney General Eric Holder formally acted on this discrepancy, announcing a system-wide rethink on federal sentencing guidelines, including on what he called “draconian” mandatory minimums. Effective immediately, he also ordered his federal attorneys to stop applying mandatory minimums to nonviolent drug offenders with no ties to large gangs.
Strikingly, the announcement received widespread support from across the political spectrum, reflecting the broader legislative moves.
“There is definitely a broad consensus, with both liberals and conservatives coming together around this,” Marc Mauer, executive director of the Sentencing Project, a longtime advocate for sentencing reform, told Mint Press News following the introduction of the Senate proposal.
“If you talk to practitioners, there are very few voices advocating to get tougher on crime. Instead, there is very much an understanding now that we’ve gone too far in using incarceration – that we need to be more proactive, more effective, and not just come up with sound-bite policies.”
Republican support
Despite longstanding Republican support for the “get tough” approach to crime, such considerations are now being echoed by some of the most prominent conservative voices in Washington, including Rep. Raul Labrador (R-Idaho), Sen. Rand Paul (R-Ky.), Sen. Mike Lee (R-Utah) and Sen. Jon Cornyn (R-Texas).
“The pendulum has swung too far, and right now there are too many non-violent drug offenders being subjected to harsh mandatory minimums,” Dan Holler, communications director for Heritage Action, the advocacy arm of the conservative Heritage Foundation, told Mint Press News. “Expanding the category of offenders that can be eligible for the safety valve and avoid these mandatory minimums is a measured but necessary change to the law.”
Still, this week’s hearing on the Bureau of Prisons highlighted ongoing concerns on the part of congressional Republicans. Perhaps most notably, Sen. Charles Grassley (R-Iowa), the top conservative on the Judiciary Committee, credited mandatory minimums with bringing down crime rates across the country over the past 30 years. Others, too, have warned that they would not support wholesale revisions of these laws.
“I imagine there will be some compromise,” FAMM’s Gill says. “Some are concerned about making sure that violent offenders aren’t included and that we don’t damage the gains we’ve seen in crime control – though I think that’s overstated. Either way, there will be some pushback and will be negotiated process.”