Tag Archives: sentence reform and corrections act

Sentence Reform – Wither Goest Thou? – Update for October 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small
LISA DOES A ROAD TRIP 2

roadtrip171027We reported last Friday on our trip to Washington for the “Advancing Justice, An Agenda for Human Dignity & Public Safety,” a conference sponsored by the Charles Koch Institute.

Today’s installment is Part 2 of our coverage:

SPEAKERS HINT AT SRCA PROSPECTS

The Sentencing Reform and Corrections Act of 2017 (S.1917) is currently before a subcommittee of Senator Charles Grassley’s Judiciary Committee, but we’ve been there before. The 2015 version of the SRCA was approved by the Judiciary Committee, only to die on the Senate floor because leadership refused to bring it to a vote during a presidential election season.

Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.
Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.

What is lost in the story of the 2015-16 attempts to pass SRCA is that the bill that came out of the Committee was not the same bill that went in. Instead, a lot of the retroactivity written into the bill as drafted was taken out to please law-and-order conservatives like then-Sen. Jefferson Beauregard Sessions III (now Attorney General) and Sen. Tom Cotton (R-Arkansas).

Sen. Grassley, one of the SRCA sponsors, said at the Advancing Justice conference that the drafters of SRCA17 “kept the package balanced,” taking into account the views of the prior bill’s critics. He said that to those “wanting reasonable compromise, we will be willing partners.”

Sen. Grassley cited a number of pending criminal justice reform bills, including the Smarter Sentencing Act (S.1933), the Mens Rea Reform Act (S.1902) and the CORRECTIONS Act (S.1994), implying that one comprehensive piece of sentencing reform legislation may emerge from the Judiciary Committee that includes pieces of many or all of these bills.

Sen. Grassley’s favorable reference to the Smarter Sentencing Act is a lot different from what he thought two years ago, when he denounced “the arguments for the Smarter Sentencing Act [as] merely a weak attempt to defend the indefensible.” In fact, his complaint that mandatory minimum laws are “too severe” and give prosecutors too much discretion is a major change from 2015, when he complained in a Senate speech about the dangers of the “leniency industrial complex” and “a growing public misconception that mandatory sentences for drug offenders needed to be reduced.”

stars171030So are the stars aligned differently in this Congress? Marc Levin ot the Texas Public Policy Institute told a session on the future of sentencing reform that “part of the strategy is to have as comprehensive a [sentencing reform] package as possible, without making perfect the enemy of the good.” Both left- and right-wing politicians are working on sentencing reform, and Koch Industries general counsel Mark Holden thinks that Attorney General Sessions will not be an impediment to the bill’s passage, despite what Levin called Sessions’ “real difference of opinion” on sentencing reform.

One potential stumbling block may be the Mens Rea Reform Act (S.1902). That Act would add a default rule for juries, requiring them to find criminal intent for federal offenses that don’t explicitly have an intent standard. If enacted, the Act would specify a default state of mind of “willfully,” and would require that unless the statute specified otherwise, AUSAs would have to prove the state of mind for every element of the offense. For example, a felon-in-possession charge under 18 USC 922(g) (which does not specify a state of mind) would require proof that the defendant possessed a gun that had traveled in interstate commerce intending to break the law. Currently, the government only must show the defendant knew he or she possessed a gun, not that the gun had traveled interstate and not that he or she knew the law prohibited possession.

mensrea160124Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. Some Senate Democrats, however, fear the measure is far too sweeping and could be a back-door attack on federal regulations that police corporate behavior.

Senator Sheldon Whitehouse (D – Rhode Island), a member of the Judiciary Committee, told the Atlantic magazine last week that he wouldn’t support a sentencing reform bill containing the change in mens rea proposed by the MRRA. “It would turn me into a warrior against it,” he said. Chuck Schumer (New York), the Democratic leader in the Senate, also was quoted as saying he would oppose such a bill.

Ohio State University law professor and sentencing expert Douglas Berman wrote pessimistically last Friday about the effect the MRRA could have on sentencing reform:

I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences.  Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere.  In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.

Sentencing Law & Policy, Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform? (Oct. 28, 2017)

The Atlantic, Could a Controversial Bill Sink Criminal-Justice Reform in Congress? (Oct. 26, 2017)

– Thomas L. Root

LISAStatHeader2small

Talking Sentence Reform At “Advancing Justice” – Update for Friday, October 27, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small
LISA DOES A ROAD TRIP

roadtrip171027We were in Washington, D.C., yesterday for the “Advancing Justice, An Agenda for Human Dignity & Public Safety,” a conference sponsored by the Charles Koch Institute.

“Advancing Justice” featured a thundering herd of prosecutors, public defenders, economists, doctors and law professors who focused on federal sentencing reform, over-criminalization, the opioid crisis, and effective rehabilitation.

Charles Koch, one of the often-denounced conservative Koch brothers (Koch Industries), is one of the staunchest sentencing reform supporters in the country. Through the Charles Koch Foundation, he has put his money where his mouth is, and bankrolled reforms that have or will have broad support from the right and the left.

LISAStatHeader2small
SRCA SPONSORS MAKE THEIR CASE

The Sentence Reform and Corrections Act of 2107 would pass the Senate with 70 votes if it were voted on today, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Senator Mike Lee (R-Utah) told the Advancing Justice conference yesterday.

advj171027The SRCA introduced in 2015 passed Sen. Grassley’s committee 15-5, and both he and Sen. Lee said it would have overwhelmingly passed the Senate had it been brought to a vote. Sen. Grassley said “election year pressures” were responsible for the bill stalling. Mark Holden, Koch Industries general counsel – who spearheaded Koch pressure in favor of the 2015 version of SRCA – was blunter about it: “Presidential politics killed the last Sentence Reform and Corrections Act,” he told one of the sessions focusing on the future of federal sentence reform.

Holden and Sen. Grassley separately noted that there is support within the Trump Administration for a reform bill. Holden noted that while it was well known that White House advisor Jared Kushner – President Trump’s son-in-law – supported sentencing reform because his father had done time for a white-collar offense – others in the Administration support it as well. Energy Secretary Rick Perry, Housing Secretary Ben Carson are strong supporters of the measure. Paul Ryan (R-Wisconsin), the Speaker of the House, is “very passionate” about sentence reform, Holden said.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Most of the attention has been focused on Attorney General Jefferson Beauregard Sessions III, who reportedly opposes sentencing reform. Holden suggested Sessions “not a real negative.” Sessions’ job, as he acknowledged at his confirmation hearing, is to enforce the laws, not make them. “He has his opinion,” Holden said. Sen. Lee told the conference that Sessions, with whom Lee served in the Senate until early this year, “is willing to work with us on sentencing reform” despite the fact Sessions voted against SRCA15 because he argued it went too far in reducing mandatory minimum sentences for some crimes.

Sen. Grassley said he had supported tougher sentencing in the 1980s and 90s, including mandatory minimum legislation, because it was the right solution to the rising crime rate at the time. But now, he admits “it makes sense to revisit” the laws. He said mandatory minimums are “too severe” and give prosecutors too much discretion in charging. Noting that 25% of DOJ budget is now spent on prisons, Sen. Grassley said the SRCA would “free up federal resources and give prisoners a chance to reform.”

Sen. Lee agreed. “We have finite resources to fight crime. The more spent on prisons, the less is left for enforcement, making communities safer… What we’re doing now on sentencing is not working,” said Sen. Lee, a former federal prosecutor.

He challenged those who oppose reform proposals to share their ideas. “We have to get to the politicians on this.” He said legislators are looking at how to properly identify low-level nonviolent drug offenders. Contrary to AG Sessions’ view, Sen. Lee said the act of drug trafficking “itself is not violent.”

moses171027“The federal sentencing laws were not handed down from Mt. Sinai,” Sen. Lee said. The SRCA is “just a matter of common sense and sound public policy.” The problem, Lee and Holden suggested, was that SRCA supporters will run into the charge that they are “soft on crime.”

“We are going to have address the argument that ‘you are soft on crime’,” Sen. Lee said. “There are not the same market drivers in the federal sphere” as in state criminal justice reform. States cannot “kick the can down the road” like Congress can. At the state level, Sen. Lee said, the argument is to be “smart on crime, soft on taxpayers.” At the federal level, it “still works to be tough on crime. But every state that has done [sentence reform] had reduced crime rates and saved money.”

Axios, an online news site, reported that Lee said to a reporter afterwards that he wants a vote on SRCA before the end of the year, but with health care and tax reform in focus, the criminal justice reform bill has yet to be a priority.

The Crime Report, Federal Sentencing Reform Alive, Senators Insist (Oct. 27, 2017)

– Thomas L. Root

LISAStatHeader2small

Smarter Sentencing Act: Just Like Before, But With More Sponsors – Update for October 17, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small
SMARTER SENTENCING ACT REDUX

deja171017We were a bit befuddled when Sen. Mike Lee (R-Utah) announced by press release on October 5, 2017, that he and Sen. Richard Durbin (D-Illinois) had “reintroduced the Smarter Sentencing Act of 2017.” It was not clear whether this was a complete retread of the Smarter Sentencing Act of 2015, S. 502, that died without a vote last December, or whether it was new and improved (or just different).

The confusion was compounded because we were unable to locate a draft of the Smarter Sentencing Act of 2017 anywhere over the next 10 days. We called Sen. Lee’s office last week for a copy of the measure, and received our copy yesterday.

Yes, indeedy, the 2017 version of the bill is identical to old S.502, except for a boatload more sponsors (21 from both sides of the aisle). Highlights of the measure include

• expanding the “safety valve” contained in 18 USC 3553(f) – which permits court to relieve low-level drug offenders with relatively clean records to avoid mandatory minimum sentences under some circumstances – to include people with slightly more criminal history.

Currently, a single misdemeanor in one’s background can disqualify the defendant from “safety valve” consideration. Under the proposed change, a couple of felonies will be too much, but more young defendants facing their first serious criminal charge would be sentenced under a scheme that let the judge weigh individual factors rather than applying an inflexible and harsh minimum sentence.

• making the Fair Sentencing Act of 2010, which reduced disparity between crack cocaine and powder cocaine from 100:1 to 18:1, retroactive.

cracksentence171017In the wake of basketball star Len Bias’ death in 1988, Congress passed the draconian Anti Drug Abuse Act, which equated one gram of crack cocaine to 100 grams of cocaine powder. As a result, drug sentences – which are driven by the amount of drug involved in the crime – soared. The defendants in crack cases were overwhelmingly black.

After years of urging by the Sentencing Commission and studies showing that Congress’ rationale for the ADA – that crack was more addictive and crack offenses more violent – was bunkum, Congress passed the Fair Sentencing Act in 2010. Unfortunately, to convince recalcitrant senators to support it, the retroactivity portions of the law were stripped out. Thus, a crack defendant sentenced August 3, 2009, was hammered with the 100:1 ratio, while a defendant sentenced August 3, 2010, was treated more in line with what a cocaine powder defendant would face.

The SSA would make the FSA retroactive, permitting defendants sentenced harshly prior to the adoption of the law eligible for resentencing, at their judges’ discretion, to a more reasonable term.

• cutting mandatory minimums in the drug trafficking laws.

Currently, the Byzantine sentencing regime in 21 USC 841(b) provides differing levels of mandatory minimum sentences for various quantities of different drugs, various number of prior drug felonies, and whether death or serious injury resulted from the drug dealing.

hammer160509Under the SSA, a 10-year mandatory minimum sentence would become 5 years, 20 years would become 10 years, five years would become two years. Right now, a defendant with two prior drug felonies (no matter how old) caught with five kilos of cocaine gets a mandatory life term: no ifs, ands or buts. Sure, the public’s thirst for vengeance is slaked by such toughness. But somehow, when the public sees the same defendant, bent and gray, shuffling across the prison yard a quarter century later, the tough sentence seems pretty wasteful.

The SSA would turn the mandatory life sentence into a mandatory minimum of 25 years.

• cutting mandatory minimums in 21 USC 960 for drug mules carrying drugs into the country courier in half.

mule171017Your poor, dumb peasant from El Cocador humping marijuana across the border or clueless young woman flying in to JFK from East Slobovia with heroin in the liner of her suitcase… These are the couriers, the lowest of the low-level defendant being paid maybe two shekels for hauling someone else’s big score. Under 21 USC 960, the drug importation criminal statute, they get hammered with the same mandatory sentences as Mr. Big, the kingpin staying safely offshore.

The SSA would cut the mandatory minimums applicable to couriers by half.

The bill does not explicitly make any change it proposes retroactive other than the extension of the FSA, but a fair reading of Section 5 of the SSA suggests that the Sentencing Commission should do so according to its retroactivity procedures.

Some of the Smarter Sentencing Act provisions echo those of the Sentence Reform and Corrections Act of 2017, introduced two days earlier. We anticipate that the provisions of the two bills will be blended into a single package by the Senate Judiciary Committee.

S.1933, Smarter Sentencing Act of 2017 (introduced Oct. 5, 2017)

– Thomas L. Root

LISAStatHeader2small