[Congressional Record Volume 159, Number 110 (Monday, July 29, 2013)]
[Senate]
[Pages S6004-S6006]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUSTICE SAFETY VALVE ACT
Mr. LEAHY. Mr. President, last week the Department of Justice
announced that the total U.S. prison population declined 1.7 percent
from 2011 to 2012. I was encouraged to see that sentencing reform at
the State level continues to pay dividends by simultaneously reducing
prison costs and crime rates.
I am troubled, however, that the entirety of the reduction in the
U.S. prison population was attributable to the States. The number of
Federal prisoners actually increased by almost 1,500 from 2011 to 2012.
While this increase was smaller than in previous years, the Federal
Government can no longer afford to continue on the course of ever-
increasing prison costs. As of last week, the Federal prison population
was over 219,000, with almost half of those men and women imprisoned on
drug charges. This year, the Bureau of Prisons budget request was just
below $7 billion.
A major factor driving the increase in the incarceration rate has
been the proliferation of Federal mandatory minimum sentences in the
last 20 years. This one-size-fits-all approach to sentencing never made
us safer, but it has cost us plenty. We must change course. In
September, the Judiciary Committee will hold a hearing to examine the
effects of Federal mandatory minimum sentences and measures to reform
the system in order to combat injustice in sentencing and the waste of
taxpayer dollars.
In March, I joined with Senator Paul to introduce just such a
measure. The Justice Safety Valve Act of 2013 will give judges greater
flexibility in sentencing in cases where a mandatory minimum is
unnecessary and counterproductive. Since its introduction, the Justice
Safety Valve Act has received endorsements from a diverse group that
spans the political spectrum, including articles written by George
Will, Grover Norquist, David Keene, and the New York Times. I ask
unanimous consent that these materials be printed in the Record at the
conclusion of my remarks.
In addition to driving up our prison population, mandatory minimum
penalties can lead to terribly unjust results in individual cases. This
is why a large majority of judges oppose mandatory minimum sentences.
In a 2010 survey by the U.S. Sentencing Commission of more than 600
Federal district court judges, nearly 70 percent agreed that the
existing safety valve provision should be extended to all Federal
offenses. That is what our bill does. Judges, who hand down sentences
and can see close up when they are appropriate and just, overwhelmingly
oppose mandatory minimum sentences.
States, including very conservative States like Texas, that have
implemented sentencing reform have saved money and seen their crime
rates drop. It is long past time that Congress follow their lead, and a
Senate Judiciary Committee hearing on Federal mandatory minimum
sentences is an important place to start.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Hill's Congress Blog, Mar. 20, 2013]
Paul-Leahy Sentencing Bill Will Ensure Time Fits the Crime
(By Julie Stewart and Grover Norquist)
Even before the sequester took effect, the Obama
administration's Department of Justice was warning that
federal prison spending had become ``unsustainable'' and was
forcing cuts in other anti-crime initiatives. Despite such
warnings, we have seen little evidence of an administration
strategy on how to control these costs. Fortunately, Senators
Rand Paul (R-Ky.) and Patrick Leahy (D-Vt) today are stepping
in to fill that void with the introduction of bipartisan
legislation to restore common sense to our criminal
sentencing laws.
The Justice Safety Valve Act of 2013 authorizes federal
courts to depart below a statutory mandatory minimum sentence
only after finding, among other things, that providing a
particular defendant a shorter sentence--say, seven or eight
years in prison for a drug offense rather than the 10-year
mandatory minimum--will not jeopardize public safety. The
bill does not require judges to impose shorter sentences, and
for many crimes, the minimum established by Congress will be
appropriate. But in cases where the mandatory minimum does
not account for the offender's limited role in a crime or
other relevant factors, the judge would be allowed to
consider those factors and craft a more appropriate sentence.
[[Page S6005]]
This common sense bill comes at a critical time. The
federal government simply cannot afford to continue to house
so many nonviolent prisoners for such lengthy sentences.
According to a recent Congressional Research Service (CRS)
report, the number of inmates under the Bureau of Prisons'
(BOP) jurisdiction has increased from approximately 25,000 in
FY1 980 to nearly 219,000 in FY2012. BOP prisons are
operating at 38 percent over capacity, endangering the safety
of guards and inmates alike. Last week, the Inspector General
for the Department of Justice testified that it's only going
to get worse: the BOP projects system-wide crowding to exceed
45 percent over rated capacity through 2018. The economic
cost of the prison population boom is staggering. Since FY
2000, appropriations for the BOP have increased from just
over $3.5 billion to more than $6.5 billion.
Locking everyone up costs a lot, but it doesn't always keep
us safer. University of Chicago economist and Freakonomics
author Steven D. Levitt was perhaps the most influential
supporter of pro-prison policies in the 1990s. He later
concluded that, as the crime rate continued to drop and the
prison population continued to grow, the increase in public
safety diminished. ``We know that harsher punishments lead to
less crime, but we also know that the millionth prisoner we
lock up is a lot less dangerous to society than the first guy
we lock up, '' Dr. Levitt recently told The New York Times.
``In the mid-1990s I concluded that the social benefits
approximately equaled the costs of incarceration.'' Today,
Dr. Levitt says, ``I think we should be shrinking the prison
population by at least one-third.''
The head of the U.S. Justice Department's criminal division
agrees that spending on federal prisons must be scrutinized.
Assistant Attorney General Lanny Breuer recently wrote, ``In
an era of governmental austerity, maximizing public safety
can only be achieved by finding a proper balance of outlays
that allows, on the one hand, for sufficient numbers of
police, investigative agents, prosecutors and judicial
personnel to investigate, apprehend, prosecute and adjudicate
those who commit federal crimes. And, on the other hand, a
sentencing policy that achieves public safety correctional
goals and justice for victims, the community, and the
offender.'' We are lacking that balance today as skyrocketing
corrections spending, driven by increasing reliance on one-
size-fits-all mandatory minimum sentencing laws, is now
crowding out spending on investigators, police, and
prosecutors.
In short, we are skimping on efforts to arrest and
prosecute violent criminals so that we can keep nonviolent
offenders behind bars for lengthy prison sentences. This is
insanity. Passing the Paul-Leahy bill would enable courts to
make sure the time fits the crime in every criminal case.
While keeping us safe, it would also save money that could be
returned to taxpayers or invested in more effective anti-
crime strategies, such as putting more police on the street
or expanding the use of proven recidivism-reducing programs
in our prisons. We can still be tough on crime, but we do not
have to be tough on taxpayers.
____
[From the New York Times, June 23, 2013]
Needed: A New Safety Valve
(By The Editorial Board)
Congress's new bipartisan task force on overcriminalization
in the justice system held its first hearing earlier this
month. It was a timely meeting: national crime rates are at
historic lows, yet the federal prison system is operating at
close to 40 percent over capacity.
Representative Karen Bass, a California Democrat, asked a
panel of experts about the problem of mandatory minimum
sentences, which contribute to prison overcrowding and rising
costs. In the 16-year period through fiscal 2011, the annual
number of federal inmates increased from 37,091 to 76,216,
with mandatory minimum sentences a driving factor. Almost
half of them are in for drugs.
The problem starts with federal drug laws that focus
heavily on the type and quantity of drugs involved in a crime
rather than the role the defendant played. Federal
prosecutors then seek mandatory sentences against defendants
who are not leaders and managers of drug enterprises. The
result is that 93 percent of those convicted of drug
trafficking are low-level offenders.
Both the Senate and the House are considering a bipartisan
bill to allow federal judges more flexibility in sentencing
in the 195 federal crimes that carry mandatory minimums. The
bill, called the Justice Safety Valve Act, deserves committee
hearings and passage soon.
A 1994 federal sentencing law allows judges to reduce
sentences for drug crimes if no one was harmed during the
crime and if the offender had little or no criminal history,
was not a leader in organizing the crime and used neither
violence nor a gun. But that law is far too narrow; all
felony convictions are disqualifying for a reduction, as are
some minor offenses, like passing a bad check.
The proposed bill would apply to all federal crimes with
mandatory minimums, not just drug crimes, so it would include
theft of food stamps and miscellaneous other lesser crimes.
It would also let judges consider less-lengthy sentences for
drug offenders who don't qualify for a reduction under the
current law.
The case of Weldon Angelos has long stood for the injustice
of mandatory minimums. Mr. Angelos received a 55-year prison
sentence in 2004 for selling a few pounds of marijuana while
having handguns in his possession, which he did not use or
display. In an extraordinary opinion, the federal trial judge
said he had no choice but to impose that ``cruel, unjust, and
irrational'' sentence. The Justice Safety Valve Act would
give courts more leeway to avoid that one-size-fits-all
approach.
____
[From the Washington Post, June 5, 2013]
Leahy and Paul Plan on Mandatory Sentencing Makes Sense
(By George F. Will)
Libertarians believe government should have a compelling
reason before it restricts an individual's liberty. Today's
liberals believe almost any reason will do, because liberty
is less important than equality, fraternity, fighting obesity
and many other aspirations. Now, however, one of the most
senior and liberal U. S. senators and one of the most junior
and libertarian have a proposal that could slow and even
repair some of the fraying of society.
Seven-term Democrat Pat Leahy's 38 Senate years have made
him Judiciary Committee chairman. Republican Rand Paul is in
his third Senate year. They hope to reduce the cruelty,
irrationality and cost of the current regime of mandatory
minimum sentences for federal crimes.
Such crimes are multiplying at a rate of more than 500 a
decade, even though the Constitution explicitly authorizes
Congress to criminalize only a few activities that are
national in nature (e.g., counterfeiting, treason, crimes on
the high seas). The federal government, having failed at core
functions, such as fairly administering a rational revenue
system, acts like a sheriff with attention-deficit disorder,
haphazardly criminalizing this and that behavior in order to
express righteous alarm about various wrongs that excite
attention.
Approximately 80,000 people are sentenced in federal courts
each year. There are an estimated 4,500 federal criminal
statutes and tens of thousands of regulations backed by
criminal penalties, including incarceration. There can be
felony penalties for violating arcane regulations that do not
give clear notice of behavior that is prescribed or
proscribed. This violates the mens rea requirement--people
deserve criminal punishment only if they intentionally engage
in conduct that is inherently wrong or that they know to be
illegal. No wonder that the federal prison population--
currently approximately 219,000, about half serving drug
sentences--has expanded 51 percent since 2000 and federal
prisons are at 138 percent of their supposed capacity.
The Leahy-Paul measure would expand to all federal crimes
the discretion federal judges have in many drug cases to
impose sentences less than the mandatory minimums. This
would, as Leahy says, allow judges--most of whom oppose
mandatory minimums--to judge. Paul says mandatory minimum
sentences, in the context of the proliferation of federal
crimes, undermine federalism, the separation of powers and
``the bedrock principle that people should be treated as
individuals.''
Almost everyone who enters the desensitizing world of U.S.
prisons is going to return to society, and many will have
been socially handicapped by the experience. Until the 1970s,
about 100 per 100,000 Americans were in prison. Today 700 per
100,000 are. America has nearly 5 percent of the world's
population but almost 25 percent of its prisoners. African
Americans are 13 percent of the nation's population but 37
percent of the prison population, and one in three African
American men spends time incarcerated. All this takes a
staggering toll on shattered families and disordered
neighborhoods.
The House Judiciary Committee has created an Over-
Criminalization Task Force. Its members should read ``Three
Felonies a Day: How the Feds Target the Innocent,'' by Harvey
Silverglate, a libertarian lawyer whose book argues that
prosecutors could indict most of us for three felonies a day.
And the task force should read the short essay ``Ham Sandwich
Nation: Due Process When Everything Is a Crime'' by Glenn
Harlan Reynolds, a professor of law at the University of
Tennessee. Given the axiom that a competent prosecutor can
persuade a grand jury to indict a ham sandwich, and given the
reality of prosecutorial abuse--particularly, compelling plea
bargains by overcharging with ``kitchen sink'' indictments--
Reynolds believes ``the decision to charge a person
criminally should itself undergo some degree of due process
scrutiny.''
He also suggests banning plea bargains: ``An understanding
that every criminal charge filed would have to be either
backed up in open court or ignominiously dropped would
significantly reduce the incentive to overcharge. . . . Our
criminal justice system, as presently practiced, is basically
a plea-bargain system with actual trials of guilt or
innocence a bit of showy froth floating on top.''
U.S. prosecutors win more than 90 percent of their cases,
97 percent of those without complete trials. British and
Canadian prosecutors win significantly less, and for many
offenses, the sentences in those nations are less severe.
Making mandatory minimums less severe would lessen the
power of prosecutors to pressure defendants by overcharging
them in order to expose them to draconian penalties. The
Leahy-Paul measure is a way to begin
[[Page S6006]]
reforming a criminal justice system in which justice is a
diminishing component.
____
[From the National Review Online, May 24, 2013]
Prison-Sentence Reform
(By David Keene)
Some liberal judges back in the 1970s and '80s enraged the
public by allowing felons back on the street with little more
than a slap on the wrist. In response, Congress and many
state legislatures enacted mandatory-minimum-sentencing laws
that essentially eliminated the discretion judges had always
enjoyed to make the punishment fit the crime. These laws were
incredibly popular when first enacted but have created more
problems than they've solved.
Undoubtedly, the tough-on-crime sentiment these laws
reflected has advanced our welcome, two-decade decline in
drug-related and violent crime. But I have come to believe
that the wholesale adoption of mandatory minimum sentencing
hasn't worked as well as everyone had hoped.
Like many conservatives, I supported many of these laws
when they were enacted and still believe that, in some narrow
situations, mandatory minimums makes sense. But like other
``one-size-fits-all'' solutions to complicated problems, they
should be reviewed in light of how they work in practice.
Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy
(D., Vt.) have crafted a smart and modest reform bill that
will fine-tune these laws to eliminate many of the unforeseen
and, frankly, unfair consequences of their application when
the facts demand more flexibility. This bipartisan measure
deserves conservative support.
The bill, the Justice Safety Valve Act of 2013, maintains
existing federal mandatory-sentencing laws. It enables judges
to depart from the minimums in certain cases, however, such
as when the mandatory sentence is not necessary to protect
public safety and seems blatantly unfair in light of the
circumstances of the offense. In so doing, their proposal
fulfills the primary objective of criminal-justice policy:
protecting public safety, while promoting our constitutional
separation of powers and saving taxpayers the expense of
unnecessary and counterproductive incarceration.
Many people, conservatives as well as liberals, have come
to believe that most mandatory-minimum-sentencing laws should
be repealed. These laws give prosecutors nearly unchecked
power to determine sentences, even though courts are in a
better position to weigh important and relevant facts, such
as an offender's culpability and likelihood of reoffending.
Federal mandatory-minimum-sentencing laws are especially
problematic. Not only do they transfer power from independent
courts to a political executive, they also perpetuate the
harmful trend of federalizing criminal activity that can be
better prosecuted at the state level.
For years, conservatives have wisely argued that the only
government programs, rules, and regulations we should abide
are those that can withstand cost-benefit analysis. Mandatory
minimum sentences, by definition, fail this basic test
because they apply a one-size-fits-all sentence to low-level
offenders, even though the punishments were designed for more
serious criminals.
Economists who once wholeheartedly supported simple pro-
prison policies now believe they have reached the point of
diminishing returns. One is University of Chicago economist
Steven D. Levitt, best known for the best-selling
Freakonomics, which he co-authored with Stephen J. Dubner.
Levitt recently told the New York Times, ``In the mid-1990s I
concluded that the social benefits approximately equaled the
costs of incarceration,'' and, today, ``I think we should be
shrinking the prison population by at least one-third.''
In other words, the initial crackdown was a good thing, but
we are now suffering the effects of too much of that good
thing.
If Levitt's estimate is even close, right now we are
wasting tens of billions of dollars locking people up without
affecting the crime rate or enhancing public safety. In fact,
spending too much on prisons skews state and federal
budgetary priorities, taking funds away from things that are
proven to drive crime even lower, such as increasing police
presence in high-violence areas and providing drug-treatment
services to addicts.
The Paul-Leahy bill will help restore needed balance to our
anti-crime efforts. Repeat and violent criminals will
continue to receive and serve lengthy prison sentences, but
in cases involving lower-level offenders, judges will be
given the flexibility to impose a shorter sentence when
warranted.
The Paul-Leahy bill is a modest fix that will affect only 2
percent of all federal offenders, and even they won't be
spared going to prison. They will simply receive slightly
shorter sentences that are more in line with their actual
offenses.
The bill will improve public safety, save taxpayers
billions of dollars, and restore our constitutional
separation of powers at the federal level while strengthening
federalism. This is a reform conservatives should embrace.
____________________