Could the Time Be Right for Mandatory-Sentencing Reform?

Attorney General Eric Holder testifies at a Senate Appropriations subcommittee as lawmakers examine the budget for the Justice Department, on Capitol Hill in Washington, Thursday, June 6, 2013. Holder said Wednesday that a better balance needs to be struck between press freedom and safeguarding national secrets in the wake of aggressive government leak probes that have angered the news media.
National Journal
Elahe Izad
Sept. 16, 2013, 5 p.m.

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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