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Long-Awaited Criminal Justice Reform Introduced In Senate

A bipartisan criminal justice reform bill introduced in the Senate last week would change enhanced mandatory minimum sentences for certain low level drug and non-violent offenses. The Sentencing Reform and Corrections Act (SRCA) [PDF] would also limit the use of solitary confinement against juvenile detainees in federal prison and allow juveniles convicted as adults and given life sentences to be eligible for parole.

The SRCA would make reforms addressing the major disparity in crack and powder cocaine sentencing retroactive. It would reduce some mandatory minimum sentences while increasing others for offenses such as unlawful possession of a firearm. The SRCA also creates new mandatory minimum sentences for certain domestic violence offenses and for providing weapons and other defense materials to terrorists and prohibited countries.

The bill creates new re-entry programming aimed at reducing recidivism, and contains a compassionate release provision for certain elderly and terminally ill inmates.

While a promising step forward for criminal justice, the Senate is signaling that it has not given up on mandatory minimum sentencing and tough-on-crime legislation.

Note: The committee also has a section-by-section summary of the bill [PDF].

Mandatory minimum sentences

Mandatory minimum sentences are essentially laws that force judges to impose specific sentence lengths regardless of the individual who has been convicted or the context in which the incident occurred.

Currently, any drug felony counts as a ‘strike’ toward a mandatory minimum sentence. The SRCA instead calls for enhanced mandatory minimum sentences for repeat offenders only if they have been convicted of ‘serious drug felonies’ for which they have been sentenced to more than one year in prison.

The bill would eliminate mandatory life sentences for those who are given three strikes, reducing the maximum penalty to twenty five years. The twenty year minimum sentence would be reduced to fifteen. Sentences can be reduced retroactively, but only after a court reviews any potential danger of release and any misconduct while in prison.

The SRCA completes reforms made by the Fair Sentencing Act of 2010, which reduced the disparity in sentencing for crack and powder cocaine from 100:1 to 18:1, by allowing for its provisions to be applied retroactively. If passed, this would undoubtedly be a great relief to thousands of incarcerated Americans unfairly convicted and exempted from this important reform.

Meanwhile, enhanced mandatory minimums would be expanded to cover serious violent felonies. The statutory maximum for unlawful possession of a firearm by a convicted felon would increase from ten to fifteen years. The legislation would limit mandatory minimums for using a gun during a violent or drug-related crime to offenders with previous convictions and time-served. The SRCA reduces these mandatory sentences from twenty five to fifteen years, and lowers the mandatory sentence for “armed career criminals” from fifteen to ten. Both reductions may be applied retroactively after court consideration.

Mandatory minimums will be introduced for certain other crimes such as interstate domestic violence charges. The SRCA also creates new minimum sentences  for providing weapons and other defense materials to prohibited countries and terrorists.

The SRCA reforms the ‘safety valve’ for mandatory minimum sentences. Safety valves are exceptions to these enhanced sentencing laws that permit judges to sentence someone to less than the minimum sentence if certain conditions are met. The bill would expand the existing safety valve to include offenders with “more extensive” criminal histories, including up to four criminal history points.

People with prior felonies and violent or drug trafficking offenses are excluded from the safety valve unless a court assessment determines that their record misrepresents the true threat they pose to society or their likelihood of re-offended. These specific provisions would not be retroactively applied to inmates who have been sentenced.

The bill creates a second safety valve, giving judges the opportunity to sentence low-level offenders below the ten year minimum, so long as the individual meets a range of criteria. They must not have used violence or a firearm in committing their crime and are not a member of a ‘continuing criminal enterprise.’ The offender must not be convicted of a serious violent or drug felony, or played an ‘enhanced role’ in the offense such as serving as an importer / exporter, high-level distributor or manufacturer.

In order to be eligible for the second safety valve, the offense must not have resulted in death or serious injury to anyone. Offenders will be deemed ineligible if they provided drugs to a person under 18. The defendant must fully cooperate with the government with information and evidence about their crime. These provisions are also not retroactive.

Prison reforms

The legislation limits the use of solitary confinement against juveniles held in federal detention centers. The bill claims to “prohibit” the use of “room confinement” against juveniles with a risk of self-harm, and calls on staff to use the “least-restrictive” techniques possible, including de-escalation and intervention by a mental health professional.

However, the law states that if a staff member decides to place such an individual in solitary confinement after those techniques fail, they must first explain the reason for doing so and let them know they will be released as soon as they regain self-control. Such inmates may only be isolated for three hours if they pose a risk to others, and for thirty minutes of they pose a risk to themselves.

After that, “the covered juvenile shall be transferred to another juvenile facility or internal location where services can be provided to the covered juvenile without relying on room confinement” or “if a qualified mental health professional believes the level of crisis service needed is not currently available, a staff member of the juvenile facility shall initiate a referral to a location that can meet the needs of the covered juvenile.”

In response to a Supreme Court ruling, juveniles convicted as adults and sentenced to terms of twenty years to life would be eligible for parole after twenty years of their sentence. Judges may consider a range of factors in deciding if a juvenile offender should be granted parole. If the individual is denied, they can apply twice more once five years has elapsed since their prior denial.

Non-violent juveniles tried as juveniles in federal court (other than for misdemeanor domestic violence charges) would be able to seal or expunge their convictions in certain circumstances. “The goal is to enable youthful offenders who life a crime free life to seek employment without regard to earlier errors in their life,” according to one bill summary.

The federal Bureau of Prisons will be required to implement “statistically validated recidivism reduction programming” for all eligible prisoners within six years under the proposed legislation. Inmates may earn up to five days credit off of their sentence for every thirty days of programming they complete.

Individuals classified as ‘low risk’ can potentially earn another an additional five day credit per cycle for attending programs. Eligible prisoners who complete their programming can earn early release and may have the opportunity to spend the final portion of their sentences (up to 25%) in pre-release confinement, such as house arrest or a halfway house. The court can decide to revoke such transfers if the inmate violates any determined conditions of pre-release custody.

Those serving sentences for a second or subsequent federal offense, or who have over thirteen criminal history points, are ineligible, as are those doing time for terrorism or violence-related convictions.

The bill compels the Attorney General to conduct a risk assessment survey to classify all federal inmates as either high, moderate or low risk. The Department of Justice will use the results of the classification survey to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehab, job training and faith-based programs.

The DOJ would be required to monitor inmate progress in these programs and give meaningful opportunities for individuals to progress to lower risk levels. The AG would also investigate the best practices for successful re-entry and carry out a demonstration in judicial districts in consultation with the administrative office of the courts. The government would also have to devise a detailed release plan for inmates noting the individual’s likelihood of substance abuse or recidivism, and prepare that inmate for re-entry.

Certain individuals without records of violence who are over sixty years of age or terminally ill may pursue compassionate release. Those in nursing homes who have served large portions of their sentences may also be eligible under the proposed rules.

AG would establish and enforce procedures for those about to undergo background checks to challenge accuracy of federal criminal records, in particular of arrests without dispositions.

Finally, the SRCA introduces additional data collection and reporting focused on recidivism. Pre-sentence investigation reports would include information on addiction and substance abuse, as well as an individual’s prior military service.

Legislation as a reflection of lessons learned

This long-awaited reform legislation is undoubtedly an improvement on the status quo. The application of mandatory minimum sentences particularly for non-violent drug offenders is one of the main drivers of mass incarceration. The focus on “statistically validated recidivism reduction programming” is promising, although we will need to wait and see what programs are devised and how they are implemented. Parole for juveniles serving life sentences is also a promising reform, as is limiting the use of solitary confinement.

Judging by the deal worked out by the Senate, it appears as though lawmakers acknowledge the inherent unfairness and destructiveness of the current punitive regime. But it does not seem as though our lawmakers have truly learned their lesson about how to productively confront crime and achieve accountability.

The fundamental problem with mandatory minimum sentencing is its one-size-fits-all approach to crime and accountability forced by people who aren’t spending time in courtrooms hearing these cases. It makes little sense for lawmakers to pre-empt a judge’s discretion in this manner. If the judiciary is tasked with determining if someone violated a law, why should they not be trusted to determine the proportionate penalty for that specific case?

Gun crimes, domestic violence and terrorism may sound like causes worthy of such harsh penalties, but a simple conviction doesn’t always tell us if justice has been served. This fallacy is how countless low-level drug dealers received lengthy, often life sentences, not to mention the inspiration for this reform in the first place. It’s not that hard to imagine history repeating it self, sweeping many more people into prisons under long sentences even if the circumstances of their case show such punishments to be disproportionate. This bill would have been truly historic reform had it abolished mandatory minimum sentences altogether.

Brian Nam-Sonenstein

Brian Nam-Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.