6 things you should know about the Senate’s criminal justice bill

As part of the first ship out to sea in the dangerous adventure of dismantling the two-decades of success in combating crime, the Senate will begin work this week on the “Sentencing Reform and Corrections Act of 2015” (S.2123), sponsored by Sen. Chuck Grassley (R-IA) and 11 other Republicans and Democrats and heavily pushed by Senators Lee (R-UT), Cornyn (R-TX), and Durbin (D-IL).  Rep. Bob Goodlatte (R-VA) has introduced a companion bill in the House (which contains the sentencing reductions but not the good behavior credits or compassionate release provisions in title II).  

The essential elements of the bill

1. Reducing Mandatory Minimums and Avoiding Them Altogether. This bill repeals the “three strikes and you’re out” law, reducing the mandatory minimum of life in prison for those convicted of a third drug trafficking offense to 25 years.  In addition, it reduces the mandatory minimum for a second time offenses from 20 years to 15 years.

More consequentially, Section 101 of the bill lowers the standard for what is defined as a drug offense in order to trigger the mandatory sentencing in the first place.  Instead of counting any prior felony conviction that was punishable by more than 1 year in prison, this bill requires that the prior conviction be punishable by more than 10 years in prison AND that the criminal had actually served at least 12 months for that conviction.  This means that the endless ream of violent, repeat offenders who successfully secured a plea deal or leniency from a prior liberal judge, and thereby avoided serving a full year in prison, are completely exempt from the mandatory minimum on the subsequent offense

Most of the leniencies in the bill will apply retroactively to the existing federal prison population.  Judges will be able to re-open these cases with their own motion, even if the defendants decline to file a motion (remember many of these individuals are illegal aliens who might lack savvy legal counsel).  To my knowledge, there is still no data released to the public as to how many existing prisoners would be eligible to get out of jail immediately based on the new sentencing guidelines.

All of these provisions apply to any drug trafficking offense, not just simple possession of marijuana.  Dealers of heroin, methamphetamine, PCP, LSD, crack, and cocaine could all potentially benefit from the leniencies.

2. Broadens Safety Valve and Creates New Valve to Avoid Mandatory Minimums.  Under existing law passed in 1994 (18 U.S.C. 3553(f)), judges can   use a “safety valve” to issue sentences below the mandatory minimums for first-time “non-violent” drug offenders, as long as they never accrued more than a minimal rap sheet prior to the drug offense.  This provision works as it is supposed to, with judges using this one avenue of leniency in consultation with federal officials.  Since 1994, 80,000 offenders have “benefited” from this safety valve.  In FY 2014, 28.5% of all drug trafficking offenders escaped the mandatory minimum via the safety valve. 

Section 102 of the bill broadens the safety valve to include those with more robust rap sheets up to four “criminal history points.”  But even those with a more extensive rap sheet can be eligible for circumventing mandatory minimums if the liberal judge provides “reliable information” that the offender's prior criminal history “substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”

Section 103 of the bill creates a second safety valve by allowing the judges to reduce the 10-year mandatory minimum to just 5 years for those convicted of trafficking large quantities of illegal drugs.  While the bill provides a myriad of criteria the judges should consider when granting leniency, many of those limitations are ambiguous and can easily be litigated by the legal profession, especially when the spirit of this bill and the entire effort behind it serve the purpose of delegitimizing the entire notion of mandatory minimums.  There is no executing language to enforce those limitations.  Hence, when Sen. Cornyn told Sen. Sessions at the hearing that he was wrong in contending this bill gets rid of mandatory minimums, he clearly doesn’t understand this section.    

It’s important to note that under existing federal law the mandatory sentencing applies to those who are caught with 1 kilo of heroin, 5 kilos of cocaine, or 1,000 kilos (2205 pounds) of marijuana.  Just 100 pounds of marijuana can full up a trunk of a car.  In other words, these are bad people.  Section 106 of this bill also takes the 2010 law (Fair Sentencing Act of 2010), which raised the threshold of crack cocaine possession required to trigger the mandatory minimums, and applies it retroactively to anyone currently in prison convicted prior to 2010.

Consequently, a number of violent and hardened criminals could be eligible for immediate release under this bill.

3.Reduces Mandatory Sentences for Violent Gun Offenders.  Sections 104 and 105 of this bill would reduce the mandatory minimums for those charged with firearms violations during the course of drug offenses or other violent crimes. 

Under current law, anyone who uses a firearm during a violent crime is subject to an additional 5-year mandatory minimum on top of the sentencing for the main crime.  For a repeat offender, that mandatory minimum is raised to 25 years.  This bill reduces the sentence to 15 years, and once again, applies retroactively to those already convicted under current law.  Section 105 of this bill retroactively reduces the mandatory minimum of 15 years to 10 years for those convicted of firearms violations who had three prior state or federal convictions involving either a violent felony or serious drug offense. 

Consequently, a number of violent and hardened criminals could be eligible for immediate release under this bill. 

Authors of the bill note that while there is a mandatory minimum of 5 years for firearms violations, there is also a 10-year maximum guideline.  Under one provision of this section, that maximum would be raised to 15 years.  But the notion that expanding a maximum could countermand the harm from diluting the minimums is absurd. 

At present, the latest data from the U.S. Sentencing Commission shows that the average sentence that judges are imposing is 6 years, well below the maximum and close to the minimum.  The bottom line is that mandatory minimums tie the hands of liberal judges, and that’s a good thing.  Maximum sentencing guidelines can only serve as inhibitors of tough sentencing, not enhancers.   

4. Get out of Jail Early for “Good Behavior.” In addition to reducing sentencing retroactively on the front end, Section 202 of the bill directs the Justice Department to develop a panoply of good behavior programs in order for criminals to earn credits that will be applied against the already-watered down sentences.  Although the text of the bill, once again, promotes the talking point that these leniencies will not apply to violent criminals, much of that determination is granted to the judges. 

5. Releasing Violent Criminals Who Were Convicted Before Reaching Adulthood. Section 209 of the bill is particularly dangerous, as it directs the Bureau of Prisons to notify anyone serving 19 years in prison who had originally committed the crime as a minor, albeit was tried for the crime as an adult, that they are eligible for potential early release.  As part of the goal of reducing prison capacity at all costs, this bill essentially tells the most violent criminals (those serving more than 20 years) that you have served long enough.

The Left has always been obsessed with compassion for juvenile criminals, but should someone who commits murder when he is 17 years old and has spent 19 years in federal prison be let out of prison with the flick of the wrist from a liberal judge?  The entire discretion over whether the criminal poses a threat to society is placed in the hands of the judge. 

Section 211 of the bill dramatically expands requirements or discretion for judges to seal and/or expunge records of crimes committed by juveniles.  It’s important to remember that many of the worst members of MS-13 and other violent gangs have committed violent crimes as minors.  

Should someone who commits murder when he is 17 years old and has spent 19 years in federal prison be let out of prison with the flick of the wrist from a liberal judge?

6. Expands “Compassionate” Release Program. Section 210 resurrects a 2007 law providing for the compassionate release of older criminals and lowers the age of eligibility for release from 65 to 60 years of age.  There are currently 5,681 prisoners who fall between the new “age of compassion” and can have their cases considered with a simple written request. 

Taken in totality, this bill pursues the wrong issue in criminal justice reform – the size and cost of the prison population as an ends to itself – in the most dangerous and irresponsible manner.  Rather than gradually debating structural changes to the federal code, this bill’s focus on retroactivity in order to empty the prisons provides no safety valve or firewall for society against a torrent of increased crime other than blind trust in the very judiciary that helped spawn the great crime wave of the ‘60s and ‘70s.  In that respect, there is nothing new or innovative about this bill.  It doubles down on the failures repudiated by mainstream thinkers in both political parties for the past generation.