Sens. Rand Paul, R-Ky., and Patrick Leahy, D-Vt., couldn’t be farther apart on the partisan spectrum, but their alliance over mandatory-sentencing laws represents the growing support for reform.
On Wednesday, the Senate Judiciary Committee will hold a hearing on the Paul-Leahy bill — dubbed the Justice Safety Valve Act of 2013 — which gives judges greater flexibility in departing from mandatory minimums when sentencing federal crimes. Another bill, sponsored by a second political odd couple — Sens. Dick Durbin, D-Ill., and Mike Lee, R-Utah — reduces mandatory minimums in nonviolent drug cases.
Indeed, liberals and conservatives have been coming together around the issue of mandatory sentences. Last month, Attorney General Eric Holder announced that the Justice Department would seek to scale back its pursuit of mandatory minimum sentences for low-level drug offenders.
Liberal critics of mandatory-sentencing laws also say they perpetuate racial disparities in the criminal-justice system. Holder agrees that “unwarranted disparities are far too common.” Conservatives have pointed to the cost of mandatory sentencing and prison overcrowding.
Holder’s announcement won him praise from conservative corners. Former Arkansas Gov. Mike Huckabee tweeted, “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for nonviolent drug crimes.”
Paul, a top witness testifying at Wednesday’s hearing, has framed mandatory minimum sentencing as reflecting one of “the biggest problems in Washington … the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems.”
Julie Stewart, founder and president of Families Against Mandatory Minimums, said the momentum for sentencing reform is greater now than during the early 1990s when Congress first held hearings and eventually passed the current safety-valve provisions.
Lawmakers have long told Stewart that they would spend however much money was needed on incarceration. “I definitely heard that for years, and I don’t anymore,” she said. “In some ways, the sequester has probably helped us, because there just isn’t that unlimited stream of money anymore.”
The antispending climate has contributed to creating a ripe environment for reform. Antitax advocate Grover Norquist backs the Paul-Leahy measure.
Stewart said, “The interest in this bloated government program that, really, the tea-party types have kind of brought a Republican perspective to, and when you link it with people like Senator Leahy who have been particularly opposed to mandatory minimums, … that’s just a winning combination of bringing the Left and Right together.” She added, “It’s created a new opportunity that hasn’t existed before…. It’s no longer this third rail that Republicans won’t touch or Democrats won’t touch.”
Between 2006 and 2012, the number of inmates in the custody of the Bureau of Prisons grew 13 percent, according to March 2013 testimony by Justice Department Inspector General Michael Horowitz. BOP requested $6.9 billion for 2013, accounting for 26 percent of DOJ’s overall budget; 15 years ago, the bureau’s budget was $3.1 billion, or 14 percent of the Justice Department’s overall budget.
But the need to deal within tight budget constraints isn’t enough to push this kind of reform over the finish line, experts say.
“The fact that crime is down pretty broadly is a factor,” said Jeffrey Miron, Harvard University senior lecturer on economics and a senior fellow at the Cato Institute. “It lets people be a little more comfortable with not being so aggressive on criminal-justice procedures.”
The FBI reported that violent crime in 2011 dropped by 4 percent for the fifth year in a row, while the murder rate dropped by 1.9 percent.
“For conservatives who are somewhat libertarian or believe in the small-government stuff they talk about, the budgetary aspects might certainly be relevant,” Miron said. “But I think the movers and shakers think incarceration is excessive; they may just be able to be a little more persuasive now because of the budgetary stuff.”
It also helps that there isn’t an organized opposition to scaling back mandatory sentencing. Stewart says she can’t point to a specific group, at least not yet, that opposes her group’s call for reform.
On the other end, a number of groups representing judges and attorneys have been supportive of reducing mandatory sentencing. In a unanimous August vote, the U.S. Sentencing Commission agreed to make working with Congress on a list of recommendations regarding federal mandatory minimum penalties — including expanding the safety-valve provision — its top priority. In a 2010 Sentencing Commission survey of District Court judges, 62 percent said the mandatory sentence was too high for all offenses that carried a mandatory minimum.
As of press time, the Judicial Conference of the United States had not taken an official position on the pending Senate legislation, but the group has long opposed mandatory minimum sentencing. Testifying before a House committee in 2009, a representative of the conference’s Committee on Criminal Law, Chief Judge Julie Carnes of Georgia, said mandatory sentencing has become “a blunt and inflexible tool.”
A companion measure from Reps. Thomas Massie, R-Ky., and Bobby Scott, D-Va., has been introduced in the House. But perhaps the biggest obstacle to the passage of a measure may be time — the House still has to deal with a laundry list of fiscal crises this fall.
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