Three bills introduced in the past eight days have put federal sentencing reform front and center in the U.S. Senate’s criminal justice agenda.
Introduced by leaders in the Senate, including Judiciary Chairman Sen. Chuck Grassley (R., Iowa), Senate Minority Whip Dick Durbin (D., Ill.), and President Pro Tempore Orrin Hatch (R., Utah), the bills represent the Senate’s latest attempt at comprehensive criminal justice reform, an initiative that failed during the last congressional session.
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The prior bill was defeated despite bipartisan support because of bipartisan opposition: conservatives split over the reduction of mandatory minimums, while liberal groups such the American Civil Liberties Union condemned mens rea reform as a "poison pill" and a sop to white collar criminals.
The three new bills are focused on changes to the federal sentencing process. The federal penal system holds almost 190,000 offenders (about eight percent of the U.S. prison and jail population). While that number is down from a 2013 historic high, concerns remain about the size of the federal prison population, as well as its composition. Unlike the state level, where drug crimes play a comparatively small role, 48.1 percent of offenders at the federal level are incarcerated for drug-related crimes.
Also a focus is federal mandatory minimums, which set a floor on the sentence that can be imposed for a given crime. The United States Sentencing Commission (USSC) has found that mandatory minimums have a significant impact on federal prison population size: 55.7 percent of inmates in federal custody as of September 2016 were convicted of an offense with a mandatory minimum; those convicted of a mandatory minimum sentence served sentences nearly four times longer than those who were not.
All of these facts inform the Sentencing Reform and Corrections Act (SRCA), put forward by a bipartisan group led by Sens. Grassley and Durbin. Grassley had signalled over the summer his intent to reintroduce the bill, which failed to reach the floor in 2015, in the fall.
The SRCA reduces enhanced penalties for certain drug offenders, "clarifies" firearm offense mandatory minimums, and ends the "three strikes and you’re out" mandatory life provision. It also grants judges more discretion in sentencing, although denies "defendants convicted of serious violent felonies and serious drug felonies" those benefits.
At the same time, the SRCA enhances the federal mandatory minimums for interstate domestic violence, providing weapons to prohibited countries and terrorists, and trafficking heroin laced with fentanyl.
Arthur Rizer, justice policy director for the R Street Institute, lauded the SRCA’s de-emphasis of mandatory minimums, arguing that its emphasis on reentry was often the preferable policy approach.
"Mandatory minimums are not an individualized approach," he said. "There are some people who are drug offenders who need to spend a long time in jail. And there are people who don’t."
The bill would also establish programs to reduce recidivism—the USSC found that approximately half of all federal inmates recidivate within eight years—and allow the retroactive application of the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine. It would also provide for a "report and inventory of all federal criminal offenses," a list that would likely be hundreds of thousands of items long.
Also focused on addressing mandatory minimums is the Smarter Sentencing Act, introduced by Sens. Lee, Durbin, Flake, and a cadre of Democratic cosponsors. Although text of the 2017 version is not yet available, it is presumably similar to the 2015 version.
That bill increases the number of instances in which courts may disregard mandatory minimums, and, most notably, reduces mandatory minimums for "manufacturing, distributing, dispensing, possessing, importing, or exporting" a variety of drugs, including heroin, PCP, and meth. The bill would cut some 20-year, 10-year, and 5-year mandatory minimum sentences to 10, 5, and 2 years, respectively.
The SSA would, like the SRCA, also apply the Fair Sentencing Act retroactively, allowing nonviolent offenders sentenced under the old crack standards to petition for a change to their sentence.
However, it is unclear if a country beset by an opioid crisis will be friendly to relaxing mandatory minimums for opioid dealers.
"I'm not saying I don't support it, I’m not sure it's really passable," Rizer said.
The most technical bill to be introduced focuses on a more wide-reaching—and possibly more impactful—concern than drugs or mandatory minimums. The collective work of Republican Sens. Hatch, Mike Lee (Utah), Ted Cruz (Texas), David Perdue (Ga.), and Rand Paul (Ky.), the Mens Rea Reform Act (MRRA) would create a uniform standard for criminal intent in federal laws that otherwise lack such a standard.
There are no uniform standards for mens rea—Latin for "guilty mind"—across federal law. Instead, a patchwork of rules and Supreme Court standards determines the relevancy of criminal intent to punishment: one could violate one of the hundreds of thousands of federal criminal statutes without meaning to and still face federal prison time for doing so. A study conducted by the Heritage Foundation and National Association of Criminal Defense Lawyers found that in the 109th Congress (2005-2006), 57 percent of nonviolent criminal statutes lacked an adequate mens rea requirement.
"This is something that in law school, in your first year criminal law class, you’re taught is a traditional requirement for prosecution," explained Rafael Mangual, deputy director of legal policy at the Manhattan Institute. "But that tradition has been slowly eroded over the last few decades. The Mens Rea Reform Act does something important insofar as it goes a long way towards restoring that tradition."
How each of these bills will fair in the Senate—or in the White House, where Jeff Sessions, an opponent of these policies in 2015 as a member of the Senate, is now attorney general—remains to be seen.