The vigorous debate on prison and incarceration policy has created an unusual partnership between Senator Mike Lee (R-UT) and Dick Durbin (D-IL). Earlier this year, they introduced the Smarter Sentencing Act in the Senate, which dramatically alters federal sentencing laws for criminals past and present. The core idea is to end mandatory and arbitrary punishments for non-violent crime and give judges more discretion. The reform proposal has the potential to save $3.3 billion over ten years.
In the 1980’s, a string of “tough-on-crime” laws were enacted from the federal and state governments to impose a standard sentence for certain non-violent crimes. Significant legislation passed, setting strict mandatory minimums for illegal drug possession, but the unintended consequences of such statutes were unexpectedly harsher sentences for minority populations. For example, crack-cocaine was cheaper than regular cocaine and was therefore concentrated in lower-income and subsequently minority neighborhoods. Possession of crack, even in low amounts, gave rise to judges passing uniform sentences disproportionately to minorities. Mandatory minimums bound judges’ hands from enacting less aggressive sentences for these non-violent crimes.
Consider that while 2.2 million Americans currently reside in prisons, there are an estimated 854,000 on parole, and almost 4 million on probation. Between the federal government and the states, we spend nearly $74 billion a year on corrections with more than 800,000 people working in the system. While the amounts for each state vary, it costs upwards of $29,000 to house a federal inmate. The corrections budget may not seem significant in a federal budget of over three trillion dollars, but in a time of limited choices it is advisable to seek savings whenever possible.
The Smarter Sentencing Act:
Senators Lee and Durbin gathered bipartisan support in 2013 from both of their respective political parties to pass the act for committee. The following list describes the major provisions in the law:
- Extends the Fair Sentencing Act of 2010 which reduced the sentencing drug quantity of crack-cocaine from 100:1 to 18:1. Furthermore, the law would retroactively set those sentencing rates thereby allowing as many as 9,000 inmates sentenced under the old rules to be released.
- Reduces the mandatory minimums by half. In federal drug trafficking cases the 5-year minimums drop to 2 years, the 10-year minimums to 5 years, and most 20 year minimums to 10 years. Twenty-year minimums would still apply for traffickers that cause death or injury, and mandatory life sentence remains for career criminals and large quantity traffickers.
- Expands the “safety valve” exception to federal drug offenses. Under current law, a judge can only set a sentence below a mandatory minimum if the defendant meets strict conditions such as having no more than one misdemeanor on their record. The new safety valve expands the exception to defendants with one prior felony and up to three misdemeanors.
- Grants judges more discretion in how they sentence lower-level drug offenders. The Smarter Sentencing Act provides for the federal sentencing commission to recommend guidelines for judges that have a wider sentencing range for drug-related crimes. So the Act doesn’t liberate a judge’s authority completely, but should the commission publish its guidelines for drug sentences with a wider range then a judge has the ability to set a sentence within those new parameters.
- Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses.
According to Families Against Mandatory Minimums, the potential cost savings from the Smarter Sentencing Act would be $3.3 billion over ten years. This amount comes from nearly $2.5 billion saved from reducing the mandatory minimum sentencing periods, $544 million from expanding the drug safety valve, and $229 million from retroactively enacting the Fair Sentencing act on crack-cocaine violations.
Where do we go from here?
The Smarter Sentencing Act is a fair piece of legislation that reduces fixed federal sentences for non-violent criminals and cuts costs by lowering incarceration rates. However, the law applies only to federal prisons, which house only 216,000 inmates. That barely covers 10 percent of the total prison population. Unless the states liberate their own mandatory minimum and safety valve laws, the potential savings and reforms in the Act will only have a marginal impact.
Federal inmate composition is also very different from the states, as 40% of prisoners are incarcerated due to drug-related offenses and 30% are in jail for immigration violations. Most state prisons are composed of at least 50% violent criminals, which is substantially higher than the federal rate. To truly reduce prison spending and incarceration rates, the sentences for violent crime would have to be reduced in each state, which is highly unlikely given the public’s attitude toward those crimes.
The Senate bill is currently sitting in the House Judiciary committee, and therefore has not been enacted into law. Congress should move forward with this common-sense legislation but also seek further, more meaningful cost-saving reforms to modernize and improve our prison system.