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Senate May Reform Mandatory Minimum Sentences With More Mandatory Minimum Sentences

The Senate Judiciary Committee is set to release its final version of the Sentencing Reform And Corrections Act (SRCA), which no longer reduces federal mandatory minimum sentences for some violent and weapons offenders, and adds new enhanced sentences for drug crimes involving fentanyl.

The original SRCA, introduced by a bipartisan delegation of lawmakers in October 2015, was an effort to acknowledge the harsh and unfair nature of some mandatory minimum sentences while expanding and creating others at the same time.

The SRCA largely focused on reducing sentences for certain low level and non-violent drug offenses. Mandatory minimums were expanded for some violent and repeat offenses, but there was a small but significant effort to bring relief to those facing long sentences for weapons convictions. It reduced the 15 year mandatory minimum sentence for gun possession offenses under the Armed Career Criminal Act to ten years, and allowed for retroactive application to cover those currently serving time for those convictions. It also reduced the mandatory minimum for people convicted of two or more gun possession offenses during the course of drug trafficking or a violent crime, also with retroactivity.

But, at the end of April, committee leaders announced a series of changes in the final bill, which were made not to improve its policies but to garner more support. Two months earlier, Republican Senators Tom Cotton and Ted Cruz nearly destroyed the SRCA’s chances of passing by engaging in Willie Horton-style attacks, in which they stoked public fears about letting violent felons out of prison.

Cruz stated his biggest issue was with the provision reducing sentences for “armed career criminals.” Soon after, reports indicated the White House held a secret meeting with Republican leaders about a possible compromise to keep the bill alive.

Criminal justice reform is well-known as a critical part of President Barack Obama’s legacy, and the administration has emphasized its view that this is an important part of the package. The administration indicated to Republicans it would support Cruz’s changes if it meant some kind of reform might have a better chance of passing.

The new language has not yet been published; it’s being finalized before the committee asks Senate Republican Majority Leader Mitch McConnell to bring it up for a vote. But we now know the final Senate bill will prohibit anyone convicted of a violent crime from having their sentences reduced. “Armed career criminals,” who Reuters reported constitute about one fifth of those who would have been granted relief under the original bill, are beyond its reach. Retroactive sentencing for all violent offenders has been removed as well.

A new mandatory minimum sentence will be added to the bill for drug crimes involving fentanyl, an opiate drug similar to, but magnitudes more powerful, than heroin or morphine. It is commonly mixed with heroin or cocaine and can dramatically increase potency and the risk of overdose.

The fentanyl mandatory minimum sentence was likely added to attract support from other conservative legislators, such as New  Hampshire Senator Kelly Ayotte, who represent states facing longstanding opioid addiction crises that have recently made national headlines. Similar sentence enhancements for fentanyl have been proposed in the House, which makes it more likely this new mandatory minimum will make it into the final bill.

At the heart of the mandatory minimum sentencing crisis, which the SRCA was supposed to address, is the question of whether long prison sentences make us all safer. It would appear the committee has contemplated this question; committee member Senator Jeff Cornyn, himself a former prosector and a former judge, told reporters, “When we’re talking about criminal justice reform […] for me the number one issue is public safety. The number two issue is public safety. The number three issue is public safety.”

The government itself acknowledges increasing sentences does not deter crime so there are no public safety gains to be made there. Therefore, we should examine the impact mandatory minimum sentences have on a person’s likelihood to commit crimes in the future.

A recent report by the U.S. Sentencing Commission [PDF], which looked at recidivism rates for federal offenders over an eight year period following their release in 2005, found people released from federal prison had high re-arrest rates: nearly half were re-arrested for a new crime or a violation of supervision conditions.

Researchers found that when armed career criminals are released after completing their mandatory minimum sentences they commit crimes again at a rate higher than any other group studied. Sixty-nine and a half percent of those released after serving sentences for offenses under the Armed Career Criminal Act were re-arrested. Fifty-five percent of those released after serving a sentence with a weapons enhancement were re-arrested, compared to 48 percent of all other offenders.

While the Senate would have you believe it improves public safety to impose long sentences on people based on the severity of their offenses, in reality those with the least severe offenses had a re-arrest rate that was nearly identical to those with the most severe offenses.

Long sentences themselves seem to correlate with recidivism. The study found that the recidivism rate was nearly twice as high for those sentenced to longer sentences of 120 months or more than those sentenced to six months or less.

These high re-arrest rates should be cause for examining what roles the experience of incarceration and conditions of re-entry play in promoting public safety.

For example, a report in the journal, Federal Probation [PDF], found people released on probation re-offend at lower rates than those who are not. This may be due to the assistance probation officers can provide formerly incarcerated people to ensure they have access to the services they need and do not re-offend.

The numbers might even be better were it not for serious deficiencies in the system, such as a high ratio of cases per probation officer and declining court funding for substance abuse treatment in the face of rising numbers of people who need it.

The final version of the Senate bill does not seem to contemplate the relationship between convictions, sentences, re-entry, and public safety very deeply. Also, it doesn’t seem hopeful that any more sense will be brought to the bill in the House of Representatives, where lawmakers are expected to force “mens rea” reforms into the debate.

Mens rea, which means “a guilty mind,” refers to the American legal principle of intent. There are some good arguments for reforming mens rea’s role in prosecutions, but rather tellingly, the leading proponents of these specific additions are the Koch Brothers and the Heritage Foundation. Opponents of their mens rea provisions believe they would create a higher burden of proof for corporate crimes, making them more difficult to prosecute.

Democratic opposition has so far kept these mens rea reforms out of the bill, but it is unclear if that opposition will last.

Brian Nam-Sonenstein

Brian Nam-Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.