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Statement

Brennan Center Letter Expressing Support for Bipartisan Sentencing Reform Proposals

On September 30, the Brennan Center sent a letter to Leaders Schumer and McConnell, urging the Senate to enact the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act, without hesitation or amendment. We urge Congress to continue to advance the EQUAL Act, which was passed in the House on September 28, 2021.

Last Updated: September 30, 2021
Published: September 29, 2021

RE: Brennan Center Support for Bipartisan Sentencing Reform Proposals

Dear Major­ity Leader Schu­mer and Minor­ity Leader McCon­nell,

We write on behalf of the Bren­nan Center for Justice to share the Center’s strong support for the First Step Imple­ment­a­tion Act (S. 1014), the COVID-19 Safer Deten­tion Act (S. 312), and the Prohib­it­ing Punish­ment of Acquit­ted Conduct Act (S. 601), which repres­ent crucial steps forward in federal senten­cing reform. The Bren­nan Center for Justice is a nonpar­tisan law and policy insti­tute that seeks to reform, revital­ize, and defend the coun­try’s systems of demo­cracy and justice. As part of that mission, we advoc­ate for changes to federal senten­cing laws and correc­tional prac­tices.

Work­ing in concert with allies across the ideo­lo­gical spec­trum, we were proud to support the First Step Act of 2018, which made progress towards a more just crim­inal legal system by redu­cing mandat­ory minim­ums for some federal drug offenses and allow­ing judges in some nonvi­ol­ent drug cases to impose lesser sentences than other­wise required. foot­note1_czwq75e 1 Ames Grawert and Tim Lau, “How the FIRST STEP Act Became Law – and What Happens Next,” Bren­nan Center for Justice (blog), Janu­ary 4, 2019, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/how-first-step-act-became-law-and-what-happens-next.  The First Step Act also took over­due action in making the Fair Senten­cing Act of 2010 retro­act­ive, allow­ing for the resen­ten­cing of people whose prison terms were origin­ally based on an unjus­ti­fi­able 100:1 dispar­ity in the senten­cing of crack and powder cocaine. foot­note2_q0myxyd 2 Ames Grawert, “What is the First Step Act – And What’s Happen­ing With it?”, Bren­nan Center for Justice (blog), June 23, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/what-first-step-act-and-whats-happen­ing-it.

The First Step Act laid a strong found­a­tion for bipar­tisan federal senten­cing reform, and the three bills being considered by the Senate would expand on that vital work. For one, while the First Step Act reduced excess­ively punit­ive sentences for some current and future federal drug cases, it failed to apply these same stand­ards retro­act­ively to similar cases. The First Step Imple­ment­a­tion Act would resolve this issue by permit­ting the retro­act­ive reduc­tion of sentences for many indi­vidu­als who, but for the date of their senten­cing, would have been covered by the First Step Act. foot­note3_dhya7mb 3 First Step Imple­ment­a­tion Act of 2021, § 101, S. 1014, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senate-bill/1014/text.  This is a common-sense change: there is no public safety rationale for punish­ing people differ­ently based on when they were sentenced.

The First Step Imple­ment­a­tion Act would also further expand judges’ senten­cing discre­tion in some drug cases, allow­ing them to impose a prison term beneath mandat­ory minim­ums if there is evid­ence that a defend­ant’s crim­inal history score, accord­ing to the U.S. Senten­cing Guidelines, “substan­tially overrep­res­ents the seri­ous­ness” of their crim­inal record or their like­li­hood of recidivat­ing. foot­note4_huj9di0 4 First Step Imple­ment­a­tion Act of 2021, § 102.  Accord­ing to provi­sional data provided by the United States Senten­cing Commis­sion (U.S.S.C.), approx­im­ately 698 people per year, cover­ing roughly 6.5% of those convicted of federal drug crimes carry­ing a mandat­ory minimum annu­ally, could be eligible for consid­er­a­tion under this provi­sion. This expan­sion of the so-called “safety valve” would ensure that judges can better account for the nuances of each case, and would only apply to those who commit offenses after the date this bill becomes law.

In addi­tion to these senten­cing reforms, the First Step Imple­ment­a­tion Act would permit the seal­ing and expun­ge­ment of certain nonvi­ol­ent juven­ile records, ensur­ing that people do not spend a life­time with the stigma of a crim­inal record. foot­note5_890s0n0 5 First Step Imple­ment­a­tion Act of 2021, § 202.  This is a vital provi­sion that will help break the connec­tion between incar­cer­a­tion and poverty. Accord­ing to Bren­nan Center research, people with felony convic­tions exper­i­ence, on aver­age, a 22 percent reduc­tion in annual earn­ings. For misde­meanor convic­tions, the figure is smal­ler — a 16 percent reduc­tion, by our estim­ate — but still sizable, espe­cially for people living at the edge of poverty. foot­note6_x9joejm 6 Terry-Ann Craigie, Ames Grawert, and Cameron Kimble, Convic­tion, Impris­on­ment, and Lost Earn­ings: How Involve­ment with the Crim­inal Justice System Deep­ens Inequal­ity, Bren­nan Center for Justice, 2020, 15, https://www.bren­nan­cen­ter.org/our-work/research-reports/convic­tion-impris­on­ment-and-lost-earn­ings-how-involve­ment-crim­inal.  Seal­ing and expun­ging these juven­ile records would greatly improve economic prospects for many people, espe­cially Black and Latino indi­vidu­als, who have dispro­por­tion­ately suffered at the hands of our current crim­inal legal system. This seal­ing provi­sion would also build on the successes of states as diverse as Utah, Pennsylvania, and Michigan. foot­note7_sh0jt7k 7 For a brief discus­sion of other states that have enacted seal­ing laws, see Ames Grawert, “Parole Reform and ‘Clean Slate’ in New York,” Bren­nan Center for Justice (blog), April 21, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/parole-reform-and-clean-slate-new-york. For the impacts of such laws, see J.J. Prescott and Sonja B. Starr, “Expun­ge­ment of Crim­inal Convic­tions: An Empir­ical Study,” Harvard Law Review 133, no. 8 (2020): 2460–555, https://repos­it­ory.law.umich.edu/cgi/view­con­tent.cgi?article=3167&context=articles.  And, the Act would allow some people who were sentenced for crimes commit­ted as juven­iles, and who have served twenty years in prison, to be resen­tenced and poten­tially released early. Twenty years is a long time, and our research shows that such extreme sentences are unne­ces­sar­ily punit­ive — espe­cially in the case of young people. foot­note8_j31tzu9 8 James Austin and Lauren-Brooke Eisen, How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated?, Bren­nan Center for Justice, 2016, https://www.bren­nan­cen­ter.org/our-work/research-reports/how-many-amer­ic­ans-are-unne­ces­sar­ily-incar­cer­ated.

Relatedly, the legis­la­tion would require the Attor­ney General to create proced­ures to ensure the accur­acy of crim­inal records, includ­ing estab­lish­ing a process for people with a convic­tion record to chal­lenge or correct inform­a­tion that might be inac­cur­ate. As noted above, a crim­inal record can reduce earn­ings for decades, or even a life­time. Inac­curacies in crim­inal records are also common, and can create a signi­fic­ant barrier to success­ful rein­teg­ra­tion into one’s community. foot­note9_en3n­f5x 9 Legal Action Center, The Prob­lem of Rap Sheet Errors: An Analysis by the Legal Action Center, 2013, https://www.lac.org/assets/files/LAC_rap_sheet_report_final_2013.pdf; see also Michelle Natividad Rodrig­uez and Maurice Emsellem, National Employ­ment Law Project, 65 Million Need Not Apply: The Case for Reform­ing Crim­inal Back­ground Checks for Employ­ment, 2011 ,7, https://www.nelp.org/wp-content/uploads/2015/03/65_Million_Need_Not_Apply.pdf.

Next, the COVID-19 Safer Deten­tion Act seeks to address the unpre­ced­en­ted health risks created by the global pandemic. foot­note10_js19wr5 10 COVID-19 Safer Deten­tion Act of 2021, S. 312, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senate-bill/312/text.  The pandemic illus­trated with partic­u­lar clar­ity how pris­ons become hot spots for conta­gious viruses, as a result of poor living condi­tions and inad­equate health­care. foot­note11_af1llja 11 Katie Park, Keri Blakinger, and Claudia Lauer, “A Half-Million People got COVID-19 in Prison. Are Offi­cials Ready for the Next Pandemic?”, The Marshall Project, June 30, 2021, https://www.them­arshall­pro­ject.org/2021/06/30/a-half-million-people-got-covid-19-in-prison-are-offi­cials-ready-for-the-next-pandemic; see also gener­ally David Cloud, On Life Support: Public Health in the Age of Mass Incar­cer­a­tion, Vera Insti­tute of Justice, 2014, https://www.vera.org/public­a­tions/on-life-support-public-health-in-the-age-of-mass-incar­cer­a­tion/.  This bill would address the prob­lem by expand­ing the use of home confine­ment for some older people, who are stat­ist­ic­ally very unlikely to commit a new crime once released. foot­note12_4tyqmqh 12 United States Senten­cing Commis­sion, The Effects of Aging on Recidiv­ism Among Federal Offend­ers, 2017, 22, https://www.ussc.gov/sites/default/files/pdf/research-and-public­a­tions/research-public­a­tions/2017/20171207_Recidiv­ism-Age.pdf.  Provi­sional U.S.S.C. data indic­ates that thou­sands could be helped by this provi­sion alone. The bill would also stream­line the compas­sion­ate release program, espe­cially for certain high-risk indi­vidu­als, for the dura­tion of the pandemic, poten­tially saving lives in the process.

The third bill, the Prohib­it­ing Punish­ment of Acquit­ted Conduct Act, would bar judges from consid­er­ing evid­ence from previ­ous acquit­tals, except for purposes of mitig­at­ing a sentence, at senten­cing. foot­note13_pxfbx8x 13 Prohib­it­ing Punish­ment of Acquit­ted Conduct Act of 2021, S. 601, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senate-bill/601.  This reform would help ensure that people are sanc­tioned only for what prosec­utors can prove in a court of law, consist­ent with the Fifth and Sixth Amend­ment guar­an­tees of due process and the right to a jury trial for those accused of commit­ting a crime.

Lastly, we urge Congress to continue to work to advance the EQUAL Act, which would erad­ic­ate once and for all the senten­cing dispar­ity between crack and powder cocaine. foot­note14_gwn6p7h 14 EQUAL Act, S. 79, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senate-bill/79.  As Justice Sonia Soto­mayor recently wrote, “there was no mean­ing­ful policy justi­fic­a­tion for such unequal sentences,” which dispro­por­tion­ately impacted people of color. foot­note15_amjsc4i 15 See Terry v. United States, 593 U.S. __, 141 S. Ct. 1858, 1865 (2021) (Soto­mayor, J., concur­ring).  Like the other legis­la­tion we high­light in this letter, the EQUAL Act also enjoys broad bipar­tisan support. foot­note16_zadte09 16 See C.J. Ciara­mella, “House Passes EQUAL Act to Erase Senten­cing Dispar­ity Between Crack and Powder Cocaine,” Reason, Septem­ber 28, 2021, https://reason.com/2021/09/28/house-passes-equal-act-to-erase-senten­cing-dispar­ity-between-crack-and-powder-cocaine/ (noting the bill’s passage by a “wide bipar­tisan vote” of 361–66).

We urge the Senate to enact the First Step Imple­ment­a­tion Act, the COVID-19 Safer Deten­tion Act, and the Prohib­it­ing Punish­ment of Acquit­ted Conduct Act, without hesit­a­tion or amend­ment. And as noted above, we urge Congress to continue to advance the EQUAL Act. All four of these bills repres­ent past-due legis­la­tion that will ensure more fair­ness and dignity in the federal crim­inal legal system, in addi­tion to enjoy­ing bipar­tisan support.

Now is the time for the Senate to continue the import­ant work of bipar­tisan crim­inal justice reform, start­ing with the legis­la­tion outlined above.

 

Sincerely,

L.B. Eisen

Director, Justice Program

Bren­nan Center for Justice

 

Ames Grawert

Senior Coun­sel & John L. Neu Justice Coun­sel, Justice Program

Bren­nan Center for Justice

 

cc: Members of the U.S. Senate

 

End Notes