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.”

ADELANTO, CA - NOVEMBER 15: A blind detainee walks with a fellow immigrant at the Adelanto Detention Facility on November 15, 2013 in Adelanto, California. The facility, the largest and newest Immigration and Customs Enforcement (ICE), detention center in California, houses an average of 1,100 immigrants in custody pending a decision in their immigration cases or awaiting deportation. The average stay for a detainee is 29 days. The facility is managed by the private GEO Group. ICE detains an average of 33,000 undocumented immigrants in more than 400 facilities nationwide.
National Journal
Elahe Izadi
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Elahe Izadi
Dec. 11, 2013, 3:01 p.m.

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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