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Sentencing Reform Pushes to Make Punishment Fit the Crime Sentencing Reform Pushes to Make Punishment Fit the Crime

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House Judiciary Committee

Sentencing Reform Pushes to Make Punishment Fit the Crime

On the Hill, momentum for reform is the highest it's been in years, with the focus on everything from penalties for drug crimes to "overcriminalization."

On Capitol Hill, momentum for sentencing reform is the highest it's been in years.(Photo by John Moore/Getty Images)

photo of Elahe Izadi
December 11, 2013

Weldon Angelos is in his ninth year of a 55-year prison term. But he isn't locked up for murder or anything of the sort. Angelos sold $350 worth of marijuana while allegedly carrying a gun and having more guns back at his home.

Angelos's sentencing judge, Paul Cassell, called the punishment "cruel, and unusual, unwise and unjust." On the same day he sentenced Angelos under federal mandatory minimum-sentencing rules, Cassell sent a second-degree murderer to prison for 22 years, which he says was the maximum under sentencing guidelines.

But the tide could be turning for people like Angelos. On Capitol Hill, momentum for sentencing reform is the highest it's been in years.

 

The reforms focus on everything from penalties for drug crimes to "overcriminalization"—how federal statutes duplicate crimes covered by state laws. They also look at federal penalties that never received congressional approval but were developed by federal agencies.

Reforming sentencing guidelines for nonviolent drug crimes will be the focus of upcoming hearings by the Overcriminalization Task Force, which was established to examine particular criminal statutes and recommend how to improve sentencing guidelines for them. The task force has estimated that the U.S. code includes 4,500 federal crimes—even arriving at a concrete number is difficult for the task force, as the Congressional Research Service was unable to do so.

The task force is headed by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., who also serve as chairman and ranking member, respectively, of the House Judiciary panel's Crime, Terrorism, Homeland Security, and Investigations Subcommittee. They've held four hearings so far, including an overview of overcriminalization, in which witnesses all agreed that the next hearings should focus on mens rea—a person's state of mind when committing a crime—as well as regulatory crime. Although the task force's term expired this month, members on both sides expect it to be renewed for another six months.

Some Democrats have criticized the task force for focusing too much on white-collar crime, given that the vast majority of federal inmates are in prison for other offenses. Just over 50 percent of federal inmates are incarcerated for drug offenses, followed by 15 percent for weapons convictions or arson, and 11 percent for immigration violations, according to the Bureau of Prisons.

That's a critique that Judiciary Committee Chairman Bob Goodlatte, R-Va., says his side is well aware of. "When we launched this, we said we would be looking at not just regulatory issues, which affect everybody by the way—there's not just one class of people. Anyone who's a consumer is affected by that," he said. "But we are also looking at, and will be holding hearings on, the prison overcrowding, mandatory minimum sentences." Those hearings will be early next year, he added.

Scott also expects upcoming hearings to focus on those issues. "The task force isn't over. We do one thing at a time, and a lot of things have diverted our attention. We had the government shutdown in the middle of this, the [Supreme Court ruling on the] Voting Rights Act," he said. "We did not have as many meetings as we anticipated, and we expect to extend the timetable, and so we expect many of these issues to be the subject of hearings."

"It's just the political process is usually slow. When we reduced the penalties for crack, we were told it was the first time any mandatory minimum had been eliminated in 40 years," Scott said. But he added, "generally, the support for mandatory minimums is dwindling."

"Mandatory minimums have been studied, and they frequently require judges to impose sentences that oppose common sense," Scott said. "We're gathering up support to significantly reduce the number of mandatory minimums."

That's something advocates for reform have noted as well. "We've never had the unanimity of opinion on this issue that we have now. We're really at a very unique, historic place," said Molly Gill, government affairs counsel for Families Against Mandatory Minimums.

Emerging arguments have taken hold across party lines—in particular, ones that say mandatory minimums are ineffective in reducing crime and that they increase prison populations and cost the federal government a lot of money. The Bureau of Prisons' inmate population grew by 13 percent between 2006 and 2012. Fifteen years ago, 14 percent of the Justice Department's budget went to BOP. For 2013, the bureau requested an amount equal to 26 percent of DOJ's budget.

Mandatory minimum sentencing reform doesn't necessarily have to come out of the task force. A set of bills in the House and Senate have been introduced with liberal and conservative cosponsors. The Senate Judiciary Committee planned to discuss its bills Thursday, although the House bills have not been scheduled for such treatment. Scott predicts that if a bill changing mandatory minimums does get through the House, it will be the one he introduced with Rep. Raul Labrador, R-Idaho, which scales back mandatory minimum sentencing in certain nonviolent drug cases. That legislation is backed by Heritage Action, the American Civil Liberties Union, and the NAACP.

Sensenbrenner, for his part, predicts something will get done with a default mens rea and "some way to try to get at all of these crimes that are for violations of administrative regulations, which never did pass the Congress."

But on changing mandatory minimum requirements, he worries about a Supreme Court ruling in 2005 that he says allows judges to treat mandatory penalties as advisory. "The thing is that if you commit the same type of crime, it shouldn't matter too much what the judge does with the sentencing following a conviction," Sensenbrenner said. "As far as mandatory minimums go, I would like to toss that back to the people who want to get rid of them, saying OK, what is going to happen to prevent the judge shopping from the prosecutors as well as the defense counsel?"

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