The Bipartisan Federal Safe Justice Act, H.R. 2944

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On June 25, a political odd couple of House Judiciary Committee members Reps. Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA) joined to co-sponsor a far-reaching bill to revamp the nation’s criminal justice system: the Safe, Accountable, Fair and Effective (SAFE) Justice Act (H.R. 2944). The bill’s 37 other co-sponsors to date, evenly divided between the two parties, include all six Democrats plus two Republicans besides the chairman on the House Judiciary subcommittee Sensenbrenner leads, and to which the bill has been referred.

The SAFE Justice Act grows out of a Congressional task force which had been studying how inflexible and outmoded features of the current justice system — particularly mandatory sentencing laws bringing stiff sentences for lower-level drug offenses — over-criminalize some offenses and cause crowded prisons. As backers of the new bill point out, over the past three decades, the U.S. prison population has grown fourfold, with a nearly six-fold cost increase, when inflation is taken into account.

The SAFE Justice Act aims to reverse the recent legislative trend towards ever-greater mandatory minimum sentences and offer greater support for programs to deter recidivism. It would reduce sentences and increase alternative disposition for low-level, non-violent crimes, especially federal drug offenses (which account for the largest share of federal incarcerations, while the largest portion of inmates in state jails are there for violent crimes).

The Sensenbrenner-Scott bill points to “smarter justice” reforms made in recent years by many states, which have generally been trimming both crime and incarceration rates, through such changes as diverting first-time non-violent offenders away from the criminal justice system.

The new bill would also: authorize federal courts to create alternatives, like the drug courts many states have set up, for lower-level offenses; encourage probation and other non-prison dispositions for first-time, non-violent offenders; limit mandatory maximum sentencing to major crimes; and for good conduct reduce jail terms for most offenses by up one-third, and the length of probation by up to half.

The bill also tries to slow the creation on new criminal offenses (backers claim 2,000 have been added to the federal criminal code since 1980); requires individualized rehabilitation plans for federal prisoners; and mandates fuller, quicker disclosure of police and prosecutor files to requesting defendants. Some of the expected savings from the bill (supporters estimate this at $200 million annually) would go to bolster local police forces.

A diverse group of backers are supporting the SAFE Justice Act, including both liberals (such as the NAACP) and conservatives (like the American Conservative Union’s Center for Criminal Justice Reform). Another unlikely pairing, the executive director of the American Civil Liberties Union and the general counsel of Koch Industries, known for its support of conservative causes, in a joint op-ed extolled the bill as “an important step” towards fixing the nation’s “ballooning, costly and ultimately unjust federal sentencing and corrections system,” which they say “needlessly throws away lives and decimates entire communities.”

President Obama in July staged a number of events to call attention to criminal justice issues, delivering a short videotaped message from the White House, speaking on the topic at the NAACP convention in Philadelphia, and visiting a federal prison in Oklahoma. The Administration has not yet advanced its own proposal, but the president has called for Congress to act.

Two House committees Judiciary and Energy and Commerce) will consider H.R. 2944, and House Speaker John Boehner has said he supports bringing the bill to a vote on the House floor. No counterpart bill has yet been introduced in the Senate, but key members of the upper chamber say they have been working on sentencing and corrections reforms and expect to offer a proposal soon.

Would New Sentencing Guidelines Free Violent Felons?

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The chairmen of the House and Senate Judiciary committees have warned Attorney General Loretta Lynch a fast-approaching retroactive reduction in sentencing guidelines for drug distribution and trafficking convictions will bring the release of thousands of federal inmates in a few months, potentially including those with extensive criminal records involving violent offenses including firearms violations, assault and even murder.

In a July 21 joint letter to the Attorney General, the panel chairs – Rep. Bob Goodlatte (R-VA) and Sen. Chuck Grassley (R-IA) – called on the Attorney General to provide detailed information on the identity, aliases, nationality, criminal history and planned release date for thousands of federal inmates the sentencing guideline change will free if it takes effect on November 1.

The chairmen noted they had unsuccessfully sought that information from the U.S. Sentencing Commission, which authored the change. At that time, they told the Sentencing Commission that, although the sentencing guideline revision was apparently intended to address only convicts with lower-level, non-violent involvement in drug crimes, it would in practice have a broader “profoundly irresponsible” effect.

By reducing the base formula for all drug offenses used when calculating if minimum mandatory sentences apply, the panel chairmen told the Sentencing Commission last year, the effect would be to reward drug violators who “possessed a firearm, committed a crime of violence, or had prior convictions.”

Part of the judicial branch, the Sentencing Commission was created by the Sentencing Reform Act of 1984, with the mission of making sentencing for federal crimes more uniform nationwide. Comprised of seven presidential appointees (at least three of whom must be sitting federal judges), it analyzes sentencing data and makes annual recommendations for changes to advisory federal sentencing guidelines.

Last year, the Sentencing Commission issued Amendment 782 to the federal sentencing guidelines, revising the formula — retroactively lowering it by two levels — for determining how severely any drug distribution or trafficking offense should be counted in deciding whether minimum sentencing provisions apply. At the time, the Commission estimated the change could cut sentences for an estimated 46,000 inmates, bringing an average 18% reduction. Because of this large impact, the Commission delayed its retroactive effect until November 1 this year.

But, the two chairmen’s letter maintains, the change could mean that on that date, nearly 8,000 federal inmates would qualify for immediate release from federal prison, including those with histories of violent crimes, including assault, firearms violations or murder. At least in part spurred by a Department of Justice program to identify low-level, non-violent offenders serving long prison terms for relatively minor offenses who might qualify for sentence reductions, tens of thousands of federal inmates have already petitioned the Bureau of Prisons for release or shorter sentences.

The chairmen’s letter also asked the Attorney General whether the Bureau of Prisons has already notified Immigration and Customs Enforcement, or plans to do so, about plans to release from its custody criminal aliens unlawfully in this country.

The issue of whether or how to revise sentencing guidelines for drug offenses is very likely to be part of any debate Congress has this year on proposals for criminal justice reform. The Obama administration is working on a package of legislative proposals, and members of both parties have also been working to devise their own bills in the area.

economic crimes

Federal Commission Revises Penalties for Fraud, Economic Crimes

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The U. S. Sentencing Commission has recently sent Congress proposed changes to penalties for several classes of federal crimes, including major changes in recommended penalties for crimes of fraud and theft, and economic crimes, including antitrust or securities violations.

One of Washington’s lesser-known agencies, the Sentencing Commission is part of the judicial branch. It was created by the Sentencing Reform Act of 1984 to draw up and regularly review guidelines for sentences for federal crimes, as a way to get greater nationwide consistency in sentencing. Its seven voting members are presidential appointees confirmed by the Senate; at least three are sitting federal judges and no more than four can belong to the same political party.

As part of its duties, the Commission compiles and analyzes data on sentences handed down to persons convicted of federal crimes, and every year it considers and makes recommendations for changes to advisory federal sentencing guidelines. By May 1 each year, the Sentencing Commission sends Congress the changes it recommends; those revisions take effect on November 1, unless disapproved by Congress (which has only happened on two occasions during the 30 years the Sentencing Commission has been in operation).

The recommendations the Sentencing Commission sent to Capitol Hill this year drew substantial comment by legal and advocacy groups, and were not free of controversy. The Justice Department, for example, objected in written comments and at a public hearing to many of the proposed changes for sentencing in federal crimes involving fraud and economic crimes, a major area for the Commission this year.

Sentencing guidelines contain tables suggesting mitigating or aggravating factors that, along with a defendant’s criminal history, are recommended for judges to consider in sentencing specific crimes. Several changes this year, if they become final, might reduce sentences for some persons convicted in fraud or economic crime cases, but raise them for others.

The Commission’s five recommendations in the area included inflation adjustments for the dollar amount of losses factored into such cases (the figures had not been changed since they were first set in 2001). Removing inflationary “bracket creep” from the measure of losses from such crimes could bring average sentence reductions in the neighborhood of 20%.

Another Commission-proposed change would revise the factors used to determine whether defendants qualify for a shorter sentence because they had only a “minimal” or “minor” role in the crime. The revised list of mitigating factors would include how well the defendant understood the structure and scope of the offense, how closely the defendant was involved in planning or organizing the crime, and the extent to which the defendant had the authority to make decisions on the criminal activity. This might bring lighter sentences for small-fry even in big-dollar white-collar crimes.

But another change could mean more prison time for persons convicted of federal fraud or economic crime charges, by redefining the penalty-enhancing factor of the “substantial financial hardship” the offense caused. At present, this is largely based on the number of victims; the Commission wants to focus more on the actual impact on victims — in areas such as insolvency, bankruptcy, or major changes in employment or living arrangements – not exclusively on the number of victims.

In other areas, the Sentencing Commission called for tougher penalties for offenses involving hydrocodone, a prescription narcotic, bringing them in line with those for oxycodone, in view of which the Commission saw as similarities between the two drugs in terms of abuse levels, and potential for addiction or death. Tougher penalties would also be in line with all hydrocodone products being classified as Schedule II controlled substances, following changes made last year by the Drug Enforcement Administration.

Report: Tougher Drug Sentences Produce Crowded Federal Prisons

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Since 1980, the population of U.S. federal prisons has climbed nearly eightfold. A recent report by the Congressionally-created Task Force on Federal Corrections attributes most of the growth in federal prison populations to two factors, both related to drug-crime sentencing.

First, drug offenders make up the lion’s share of those in federal prisons. At the end of fiscal year 2013, the most recent period for which data are available, more federal prisoners had been incarcerated on drug charges than on all other types of federal crimes combined. Federal prisons held roughly 50,000 more convicts on drug charges than was the case two decades earlier.

Second, even though the number of new prisoners entering federal prisons each year on drug charges has remained level at about 30,000, drug offenders now make up a greater share of the overall prison population, since they draw longer sentences and are less likely to be released early.

Sentences for prisoners convicted on federal drug charges include imprisonment in about 95% of all cases, compared with the roughly 76% of drug offenders who drew prison terms several decades ago. That’s largely because of the Anti-Drug Abuse Act of 1986, which mandates minimum sentences for many drug offenses, including drug trafficking, which is cited in 95% of federal drug prosecutions and included in the sentences of about 60% of drug prisoners.

Its mandatory minimum sentence can range from a year to life, depending on the particular charge. The average sentence for drug offenders being held at the end of fiscal year 2013 was about 11 years. Of recent prisoners, nearly none were released before serving at least 87% of their sentence.

While about a quarter of prisoners sentenced for drugs also had weapons charges, about a third had little or no previous criminal history when they were sentenced. The report also noted the disproportionate effect of drug sentences on some minority groups. Of federal drug-offense prisoners in the most recent year for which figures are available, more than three-quarters were black or Hispanic.

The Task Force is far from the only group calling attention to what it sees as the need for smaller prison populations and revised sentencing. A new coalition, comprised of an unlikely combination of liberal and conservative groups, also plans to focus on reducing the prison population, by revising sentencing rules and finding ways to cut repeat offending. The Coalition for Public Safety, announced in February, includes such odd bedfellows as conservative stalwarts Koch Industries, FreedomWorks, and Americans for Tax Reform, alongside liberal groups such as the American Civil Liberties Union, the Center for American Progress and the Leadership Conference Education Fund.

A statement for the new group says it will “work across the political spectrum” to recommend and build consensus for comprehensive reforms in local, state and federal criminal justice systems. Its announced goals include:

  • reducing the numbers, and associated costs, of jail and prison inmates
  • eliminating unnecessarily harsh and counter-productive criminal penalties and incarceration patterns
  • achieving faster, more certain justice for accused and victims alike
  • reducing recidivism and lowering barriers to reintegrating former prisoners back into society.
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