In a Nutshell: Criminal Justice Bills Pending Before Congress

Members of Congress from both sides of the aisle have come together to reduce the country’s over reliance on incarceration. As Sen. Durbin said when he first introduced the Smarter Sentencing Act in 2013, “mandatory minimum sentences for non-violent drug offenders have played a huge role in the explosion of the U.S. prison population.  Once seen as a strong deterrent, these mandatory minimum sentences have too often been unfair, fiscally irresponsible and a threat to public safety.”  Here are three key bills worth watching. 

Smarter Sentencing Act (S. 502/ H.R. 920)

Sens. Mike Lee (R-UT) and  Richard Durbin (D-IL) with wide bipartisan support, this legislation aims to reduce the ballooning federal prison population. The bill takes a modest approach to the problem of mandatory minimum sentences by reducing some without removing all. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” said Lee, “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manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”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 legislation has three main parts.

• The bill will expand the “safety valve,” which allows a judge to part from mandatory minimum sentencing laws if certain conditions are met. As currently drafted, the safety valve has only a minor impact on non-violent drug offenders.  The Smarter Sentencing Act will expand the current criteria for eligibility. This change is supported by over 60 percent of federal district court judges, many of whom object to mandatory minimum sentences.
   
• It institutes retroactivity for those sentenced under old crack and powder cocaine laws.  In 2010, the Congress passed and the President signed the Fair Sentencing Act, which reduced a long-maligned sentencing disparity between crack and powder cocaine. While a provision in that law allowed prisoners sentenced under pre- Fair Sentencing Act laws to apply for a sentence reduction, it did not automatically reduce an inmate’s sentence; inmates would have to petition a court for review.
   
• The Smarter Sentencing Act reduces current mandatory drug sentences, allowing judges to determine the appropriate sentence.  Most individuals currently serving time for federal drug crimes receive penalties with a  5or 10 year mandatory minimum, which are therefore the main drivers of the increasing prison population.  The bill would cut these penalties in half.     

According to a Congressional Budget Office estimate in 2014, the Smarter Sentencing Act would lead to a $4 billion reduction in Department of Justice spending overall from 2015–2024. The legislation is supported by a wide array of civil rights, law enforcement, and conservative groups.

The Brennan center has endorsed the Smarter Sentencing Act because it takes a comprehensive approach to justice reform. Other organizations supporting the bill include:

•          ACLU
•          American Correctional Association
•          Association of Prosecuting Attorneys
•          Faith and Freedom Coalition
•          Heritage Action
•          Justice Fellowship of Prison Fellowship Ministries
•          Lawyers Committee for Civil Rights Under the Law
•          Major City Chiefs of Police
•          NAACP Legal Defense and Education Fund
•          The American Bar Association
•          The Leadership Conference on Civil and Human Rights
•          The National Organization of Black Law Enforcement
•          The Sentencing Project

The Smarter Sentencing Act is currently pending before the Senate Judiciary committee with the support of 12 bi-partisan co-sponsors. 

Corrections Oversight, Recidivism Reduction, and Elimination Costs for Taxpayers in our National System (S. 467)

Known as the CORRECTIONS Act, introduced in February 2015 by Sens. John Cornyn (R-TX) and Sheldon Whitehouse (D-R.I), this measure aims to reduce the size of the federal inmate population and help prisoners successfully reintegrate into society. Unlike the Smarter Sentencing Act, which focused on “front-end” reforms, the CORRECTIONS Act focuses solely on “back-end reforms” or changes to help those already in prison or being released from prison. While the bill does a number of things to reduce recidivism, there are a few key provisions worth highlighting:

• The bill requires the Bureau of Prisons to create and institute a risk assessment tool, which would be used to determine if a prisoner is a low, medium or high risk for committing another offense. This evaluation would then determine the type of re-entry programs they would have access to while still inside prison. For example, if an inmate was determined to be a low or medium risk, they would be eligible for earned time off their sentence by completing recidivism reduction programs like vocation training, drug treatment, or education. The bill does exclude any offenders convicted of sex crimes, terrorism, or violent crimes, repeat offenders, organized crime participants, or major fraud offenders from earning credits under the program.
   
• The bill requires the Department of Justice (DOJ) to review all recidivism reduction programs to ensure they are effective.  
   
• It would require DOJ to form partnerships with faith-based and community/non-profit organizations to provide programming for prisoners, and require the Bureau of Prisons to ensure any eligible inmate has access to substance abuse treatment programs before their release.  
   
•  Lastly, the bill directs the Bureau of Prisons to notify the Veterans Affairs Department and allow access to the VA for any inmate who has previously served in the U.S. armed forces. 

The CORRECTIONS Act is currently pending before the Senate Judiciary Committee with the support of 9 bi-partisan co-sponsors. 

SAFE Justice Act (H.R. 2944)

Introduced by Reps. Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA) the SAFE Justice Act aims to provide a comprehensive overhaul to the federal system by using reforms already successful in the states. The bill, a result of the House Judiciary’s Task Force on Over-criminalization, offers a wide range of changes to a system that, in Sensenbrenner’s words, is “not only fiscally unstainable, but morally irresponsible.” 

The SAFE Justice Act allows mandatory minimum sentences in drug cases to be adjusted based on the role of the offender in the crime. As a result, low-level drug offenders will no longer receive lengthy sentences intended for big drug traffickers.

• The bill expands the current safety valve, which allows judges more discretion to give a sentence outside of the mandatory minimum range if an offender meets certain requirements. It narrows many of the sentencing enhancements that can currently impose life sentences on offenders for previous drug crimes, including minor ones or those that committed more than 10 years ago.
   
• The bill includes provisions to allow for petitions for resentencing, as well as offering retroactivity for those sentenced before the Fair Sentencing Act of 2010. 
   
• The SAFE Justice Act has several provisions that apply to those already in prison. It expands the current compassionate release program, expands access to the Residential Drug and Alcohol Treatment Program, and allows prisoners to reduce their sentences if they successfully complete vocational, educational or substance abuse programs.
   
• The Act also requires current Bureau of Prison employees to receive training on how to de-escalate encounters with prisoners suffering from mental health problems. 
   
•  The SAFE Justice Act also makes modifications to reduce recidivism. The bill institutes swift, certain, and proportionate sanctions for violations of probation, a model pulled from a similar program in Hawaii.
   
• In addition, the bill provides performance incentive funding for jurisdictions to reduce probationary revocations. This provision reflects the Brennan Center’s Success Oriented Funding model by providing success measures and  rewards to jurisdictions with lower rates of probation revocations.   

The SAFE Justice Act has 35 bi-partisan co-sponsors and is pending before the House Judiciary Committee. 

The Promise of Reform

We are in the middle of an exciting time around criminal justice reform. Even two years ago, no one would have thought that Republicans and Democrats, progressives, conservatives or libertarians would stand together to combat the problem of mass incarceration — yet here we sit with all groups offering solutions to the problem. 

As the Brennan Center continues to monitor the movement of these bills and others that may be introduced, we will continue to stress the need for front end changes to the current system.  Without changes that reduce the number of people entering prison in the first place, a meaningful reduction in our prison population is impossible.

Committee action on these bills should begin in the early fall.   

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