Senate hears call for federal sentencing reform

Growing federal prison populations and related costs are not sustainable, according to the chairman of the Senate Committee on the Judiciary, who Wednesday called on his committee to work together to reform the system.

“Fiscal responsibility demands it,” Sen. Patrick Leahy, D-Vt., said. “Justice demands it.”

Leahy made it clear he believes some offenders deserve long prison terms, but that the extensive use of mandatory minimum sentencing has led to a 700 percent increase in the federal prison population in the last 30 years, costing approximately $6.4 billion, or 25 percent of the Department of Justice’s annual budget.

To look at the problem, he called a special hearing on “Re-evaluating the Effectiveness of Federal Mandatory Minimum Sentences.”

Leahy, a former prosecutor, and Sen. Rand Paul, one of four witnesses who testified, have introduced the Justice Safety Valve Act of 2013, which would restore discretion to judges to determine if a mandatory minimum sentence is warranted or counterproductive.

“There’s quite a bit of misunderstanding concerning this topic,” said Sen. Charles E. Grassley, R-Iowa, the committee’s ranking member.

He said prior to 1984, judges had almost unlimited sentencing discretion which led to unwarranted disparities which is why Congress originally adopted the sentencing guidelines, taking into consideration the nature of the crime and history of the offender.

“The Supreme Court undermined the excellent sentencing legislation,” Grassley said, citing the 2005 decision in People v. Booker, 543 U.S. 220, which found the sentencing guidelines violated the Sixth Amendment.

“In a particularly egregious example of judicial activism, they overwrote congressional intent and made the guidelines advisory,” Grassley said. “It was only because the guidelines were clearly intended to be mandatory that Congress even passed them in the first place.”

He suggested adding financial crimes and child pornography possession to the mandatory minimum sentencing guidelines.

“Let’s be smart about reducing crime in America,” said Sen. Dick Durbin, D-Ill., who, with Sen. Michael S. Lee, R-Utah, has introduced the Smarter Sentencing Act to reform federal drug sentences. “Let’s not be punitive in the belief that somehow that makes the nation safer.”

Paul said the “war on drugs” disproportionately affects young African-American males whom, according to the American Civil Liberties Union, are four to five times more likely to be convicted of drug possession, although surveys indicate drug usage among blacks and whites is about the same.

That, Paul said, is because it is easier for law enforcement to go into urban areas to make arrests than in suburban areas and that it is easier to convict poor kids than rich kids.

“Since mandatory sentencing began, America’s prison population has exploded, quadrupled to 2.4 million people in jail,” Paul said. “America now jails a higher percentage of its citizens than any other country, at a cost of $80 billion a year.”

Attorney Marc Levin, policy director at the Right on Crime Initiative at the Texas Public Policy Foundation, said many states, “particularly those led by conservative governors,” have saved taxpayers money through tough and smart criminal justice reforms such as drug and other problem-solving courts, reducing penalties for low-level drug possession, re-investing savings into community corrections and law enforcement strategies, and earned-time policies to give incentives to offenders to succeed in rehabilitation and reduce recidivism.

They all cited instances in which someone received an excessive prison term such as Weldon Angelos, a 24-year-old Utah man sentenced to 55 years in prison for selling a total of $350 worth of marijuana to a police informant on several occasions.

Brett Tolman of Utah, a former U.S. attorney and counsel to the Senate Judiciary Committee, said valuable resources are being spent to pursue low-level offenders who should be prosecuted by states and are being over punished by the federal government with sentences that do not match the gravity of their crimes.

“The result, ironically, is a burgeoning prison population that, with its rising costs, is becoming a real and immediate threat to public safety,” he said. “Under current laws, federal prosecutors exercise virtually complete control over the entire criminal justice process. Federal prosecutors decide who to charge, what to charge, how many counts to charge, the terms of any plea agreement and, all too often, what the range of sentence will be.”

Tolman said mandatory minimums have become the “sought-after” result by which many in the criminal justice system measure success; that prosecutors receive a pat on the back for the lengths of sentences given to defendants and there is an underlying culture of measuring one’s self by the sentence length.

Attorney Scott Burns, executive director of the National District Attorneys Association, said he had not heard of that, but that he could say the days of “putting a notch in your belt for how many convictions you get is long gone. We are just as proud when we acquit the innocent or when we don’t charge or when we go to trial and hold the guilty accountable for victims.”

He asked why senators were considering reforms now, noting the success of alternative programs such as drug courts and the fact that crime rates are down. He said crime is significantly lower across the country, with homicides down 50 percent in the past 30 years and every other crime down 30 to 40 percent.

Burns also took exception to U.S. Attorney General Eric Holder’s recent announcement that the criminal justice system is broken and directing U.S. attorneys to stop prosecuting and sending low-level, first-time drug offenders to prison.

“The fact that the system is broken or in crisis is a myth that must be dispelled if we’re going to work together to make a great criminal justice system even better,” Burns said.

He added that mandatory minimum sentences are an important tool for prosecutors to leverage cooperation from defendants and witnesses to solve other crimes, possibly moving up the chain to arrest a drug cartel kingpin.

The reality, according to Tolman, is drug cartels understand the laws and use low-level people to move drugs, rather than people who know the inner workings of their operations. He said he asked a prosecutor friend how many times he got a kingpin and his friend said he almost got one once.

In the Angelos case, he said agents could have arrested him after his first buy, but waited, adding 25 sentencing years to each additional offense, resulting in a total sentence outweighing the minimums given for hijacking, kidnapping or rape.

Burns said the drug trade is a threat to public safety and suggested it is no longer appropriate to call it a non-violent crime, considering the number of people, including children, murdered in the course of its operations.

Tolman challenged the large number of drug trafficking cases, saying they are based on quantity, “what is called a distributable amount,” and that many people are being charged with trafficking who were purchasing drugs for themselves or family members with no intention of selling them.

Leahy said another irony is there is less money for alternative programs because more is going to the federal Bureau of Prisons. He said he will keep the hearing record open for a week. A video of the hearing may be viewed on the Judiciary Committee’s website at www.judiciary.senate.gov.