A powerful bipartisan group of senators announced their intention today to introduce The Sentencing Reform and Corrections Act of 2015.
The bill addresses “front end” reform and contains some of key provisions (albeit in modified form) of what had been the Smarter Sentencing Act of 2015 (“SSA”), which had been introduced by Senators Mike Lee, R-Utah, and Richard Durbin, D-Ill.
The new bill also addresses “back end” reform by incorporating all provisions of what had been the CORRECTIONS Act of 2015, which had been introduced by Senators John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.
The front end reforms revise some mandatory minimum sentencing laws that are currently applied to federal drug crimes by reducing the length of some of them (although not as far as originally proposed in the SSA), and by expanding the existing “safety valve” and creating a new safety valve (which goes farther than the SSA as originally proposed).
Relatively low-level drug dealers, with only a modest criminal history for non-violent offenses, could be sentenced without regard to any mandatory minimum sentence that might otherwise apply (and which would apply under existing law) because of the amount and type of drug involved.
The bill also addresses a somewhat obscure issue involving the use or brandishing of a firearm during a drug trafficking crime in which federal prosecutors have been known to “stack” charges, which results in offenders serving a series of mandatory minimum sentences consecutively rather than concurrently.
Moreover, many of these provisions in the bill would apply retroactively, enabling certain offenders who received sentences that, under this new law, would be deemed too harsh to seek to have their sentences reduced.
The “back end” reform directs the attorney general to develop a risk and needs assessment tool that incorporates both static and dynamic factors; requires all eligible offenders (some categories of offenders, such as terrorists, certain repeat offenders, sex offenders, and violent offenders, are ineligible) to undergo regular risk assessments to determine whether they are a low, moderate, or high risk of re-offending; and provide incentives in the form of “time credits” (with low-risk offenders receiving the most credit) to eligible offenders who participate in and successfully complete programs or engage in other productive activities that are designed to meet their particular needs and which will, it is hoped, decrease the likelihood that they will recidivate once released.
Other senators co-sponsoring the bill include Charles Schumer, D-N.Y.; Lindsey Graham, R-S.C.; Patrick Leahy, D-Vt.; Cory Booker, D-N.J.; and, most significantly, Charles Grassley, R-Iowa.
Grassley’s endorsement of this bill is particularly significant because he is the chairman of the Senate Judiciary Committee and has heretofore been a vociferous critic of revising mandatory minimum sentences. In that regard, it is worth noting that while the bill does reduce mandatory minimum sentences in some drug cases, it also includes two new mandatory minimum sentences for some domestic violence offenses that result in death, permanent disfigurement, or serious bodily injury and for individuals who provide proscribed goods and services to terrorists or proliferators of weapons of mass destruction.
The bill also contains various other provisions that, among other things, limit the use of solitary confinement for juvenile offenders (which had been covered by the MERCY Act previously introduced by Booker), provide a mechanism for correcting incomplete or inaccurate criminal history records in the FBI’s background check system, allow juvenile offenders to petition a court for early release after serving 20 years in prison, make it easier for some non-violent juvenile offenders to get their records sealed or expunged, and provide more efficient mechanisms for certain elderly, nonviolent offenders suffering from a terminal illness to obtain a compassionate release.
There is also a provision that would make the law more fair and transparent to average citizens by implementing a ‘‘good government’’ measure.
Citizens are currently subject to a dizzying and ever-expanding number of criminal statutes and regulations without any realistic way of knowing what those laws might be, even though violations could result in incarceration and being branded as criminals for the rest of their lives.
To ameliorate this situation, the bill would require the attorney general to identify all crimes in the U.S. Code within one year, to state how many prosecutions have been brought under each of those provisions over the past 15 years, and to identify what the mens rea (‘‘guilty mind’’) requirement is for each of those provisions.
The act would also require all regulatory agencies to do the same within one year with respect to regulations carrying criminal penalties that fall under their purview. Finally, the act would require the attorney general and each of these agencies to make these lists available to the public for free on their websites within two years.
This would provide people who cannot afford an attorney and are concerned that some activity that they are thinking of undertaking might run afoul of some obscure criminal law, with some ability to research the issue and discover which activities they ought to refrain from doing.
No doubt, this bill goes further than some would have liked and not as far as others would have liked. I have written favorably about various aspects of this bill on prior occasions (see here and here), along with other Heritage scholars, and believe that this bill is worthy of serious consideration.
One big note of disappointment, though, is that mens rea reform is noticeably missing from the bill. There is a pressing need for such reform, and its absence makes this primarily a criminal sentencing reform bill rather than a true criminal justice reform bill. Senator Orrin Hatch, R-Utah, on the Senate side and Congressmen Bob Goodlatte, R-Va.; James Sensenbrenner, R-Wis.; John Conyers, D-Mich.; and Bobby Scott, D-Va., on the House side, among others, have spoken about the need for mens rea reform, so perhaps there is still time to include this reform as part of the package.