With all the news and progress surrounding federal sentencing reforms, including major Supreme Court decisions and draft legislation, prison sentencing reform should not be far behind. However, as prison reform advocates and family members wait for Congress to act, the laws appear to be stalled in the legislature.
Republican and Democratic lawmakers have not seen eye-to-eye on much in recent years, which may explain the lack of movement in many legislative areas. However, in the rare case of federal prison reform, there is support across the spectrum, including from President Obama. In November of last year, the House Judiciary Committee approved the Sentencing Reform Act of 2015. The purpose of the bill is to reduce the mandatory minimum sentences for low-level, nonviolent offenders. The bill was introduced by two congressmen, one Republican and one Democrat, with the support of 30 other Representatives.
Meanwhile, Senators introduced their own legislation, the Sentencing Reform and Corrections Act of 2015, which passed the Senate's Judiciary Committee, and enjoys widespread support from such diverse interests as Koch Industries and the American Civil Liberties Union (ACLU). However, not everyone is behind such broad reforms. As the House bill makes its way through the Senate, some conservative politicians are looking to weaken the reforms.
Arkansas Republican Senator Tom Cotton is one of the most vocal opponents of sentencing reform. “It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” said Cotton.
The Senate and House sentencing reform bills are similar in many ways. The Sentencing Reform and Corrections Act of 2015 (“Senate Bill”) does add new mandatory minimums for providing support to terrorists, and interstate domestic violence that results in death. The Senate Bill also allows some federal prisoners to earn time credit for participating in certain rehabilitation programs. The Sentencing Reform Act of 2015 (“House Bill”) increases the penalties for certain drug offenses involving heroin fortified with fentanyl.
However, in general these bills are aimed at relaxing the federal sentencing guidelines for drug and weapons crimes, which could provide welcome relief to tens of thousands of criminals serving lengthy sentences. Specifically, they would:
- Make the Fair Sentencing Act of 2010 retroactive, which changed the way the amount of crack cocaine was calculated for mandatory minimums;
- Allow for sentencing under the mandatory minimum term for some nonviolent offenders;
- Reduce the mandatory minimum sentence for those facing gun possession offenses under the Armed Career Criminal Act (ACCA), and apply these reductions retroactively;
- Reduce the mandatory life without parole sentence for a third drug offense to 25 years, and apply these changes retroactively for those without a serious violent felony conviction; and
- Reduce the mandatory 20-year sentence for a second drug offense to 15 years, and apply these changes retroactively for those without a serious violent felony conviction.
If these changes were to go into effect, individuals serving time could petition to have their sentence reduced, transferred to a halfway house for supervised relief, or be released home.
An editorial in The New York Times characterized the stalled progress as “holding sentencing reform hostage.” There are two major threats to passage of the bill. First, some Republicans will only support the bill if it includes a provision to make it more difficult to prosecute corporate executives from environmental or financial crimes. Second is the threat presented by Cotton and other legislators, including Senator Ted Cruz, who call these potential reforms dangerous, worrying the public that hardened criminals will be set loose.
Fellow Republican Senator John Cornyn is pushing to convince Cotton and other Republicans of the wisdom behind sentencing reform. Cornyn, who is also a former judge and attorney general, wants to educate lawmakers on what the reforms will mean, and dispel the belief that the changes will throw open prison gates, releasing criminals on the streets. “Nobody is getting out of jail free,” said Cornyn, “which is some of the characterization that is out there.”
With almost 70 former federal prosecutors and senior government officials signing on in support of the Sentencing Reform and and Corrections Act, nearly all stakeholders are pushing for the overdue reforms. These former prosecutors have witnessed how decades of mandatory minimum sentencing has subjected non-violent and small time offenders to excessive prison time. Mandatory sentencing removes the power of judges to use their discretion to apply appropriate criminal sentences.
Even the Supreme Court took a major step towards sentencing reform in the case of Johnson v. U.S., in striking down the residual clause of the Armed Career Criminal Act (ACCA). In the 8-to-1 decision, only Justice Samuel Alito filed a dissenting opinion. Now the Supreme Court may be considering the retroactive impact of the Johnson decision when they look at Welch v. U.S. in the next couple of months. With this nod towards sentencing reform coming from the highest court in the country, lawmakers may be the last to address this serious issue facing the country.
Before these sentencing reform bills can be signed into law, they will have to be debated, and voted on. Once the bill is approved by a majority of the House of Representatives and the Senate, the bill is sent to the president to be signed into law. As the bills stand, some version of them would likely be approved by President Barack Obama, given his support of sentencing reform, but there is no telling whether a sentencing reform bill will make it to the president's desk before his term ends on January 20, 2017. After that date, any proposed laws would be in the hands of the next elected president.