[Congressional Record Volume 161, Number 24 (Thursday, February 12, 2015)]
[Senate]
[Pages S990-S992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEE (for himself, Mr. Durbin, Mr. Cruz, Mr. Leahy, Mr. 
        Flake, Mr. Booker, Mr. Paul, Mr. Whitehouse, and Mr. Coons):
  S. 502. A bill to focus limited Federal resources on the most serious 
offenders; to the Committee on the Judiciary.
  Mr. BOOKER. Mr. President, I rise today to speak about the Smarter 
Sentencing Act, which I believe is a very critical piece of 
legislation.
  I am pleased to be an original cosponsor of this legislation in this 
Congress, and I thank the bipartisan coalition of Senators who have 
come together, led by Senator Mike Lee from Utah and Senator Dick 
Durbin from Illinois. Their leadership on this issue has been 
absolutely critical.
  The Smarter Sentencing Act has essential front-end reforms. These are 
reforms for when a person gets to the point of incarceration. What they 
actually do is combat injustices in the Federal sentencing program. 
They address a real plague in our country; that is, mass incarceration.
  Think about this: We are the land of the free. We are a nation that 
believes in liberty and justice. But we are singular in humanity for an 
awful distinction: We have 5 percent of the globe's population but we 
incarcerate 25 percent of the globe's incarcerated people. That is 
unacceptable unless you believe for some reason that Americans have a 
higher proclivity for crime, unless you believe we have something in 
our water that makes us more likely to do wrong, and that is not the 
case.
  The challenge is that we have seen in the past three decades a 
profound over-incarceration driven by a drug war that has created 
unfortunate negative consequences to our society. I thank Members of 
Congress for stepping up in this Congress to speak to this issue. It is 
un-American that we should hold the largest amount of incarcerated 
people per population than any other country. It goes against the very 
strains of our society dedicated to liberty, dedicated to keeping 
government focused on what it should be doing, not overreaching, not 
becoming overly aggressive, not surrendering or taking the liberty 
unnecessarily of other Americans.
  I would like to talk for a few minutes about this broken system. What 
is broken in our criminal justice system? Well, when about three-
quarters of our Federal prisoners are actually nonviolent offenders--I 
am actually one of those people who believe that if you do a violent 
crime, you should pay a very hefty price for that, that we as a society 
should have a place where we take stern action against people who 
promulgate violence, who undermine civil society. But as we look at 
this mass-incarceration problem where 25 percent of the globe's prison 
population is in our country, we realize that three-quarters of those 
people in the Federal prison system are nonviolent offenders.
  This is not our history. This is not our tradition. Over the course 
of all of our Nation's history, we did not have this problem. It has 
really been the last 30 years where we have witnessed the explosion in 
the U.S. Federal prison population. In those 30 years alone--think 
about this--in the last 30 years alone, the prison population at the 
Federal level has expanded by nearly 800 percent. That is a massive and 
unacceptable increase, especially when you realize this was driven by 
the incarceration of nonviolent offenders.
  This expansion of our prison population had a harmful effect when 
those people were released because once someone has a nonviolent felony 
offense, it is hard to get a job, it is hard to get business licenses, 
and they cannot get Pell grants. Often those people get caught up and 
go back to being involved in the drug war. So what happens is that two 
out of three of those people get rearrested within 3 years.
  We are paying for this broken system, this revolving door of 
arresting nonviolent offenders, releasing them, and bringing them back 
into our system. It is plaguing the Federal budget and, frankly, State 
budgets all around our country. Each year more than one-quarter of a 
trillion dollars is being spent on this broken criminal justice 
system--money that could be used to empower people to succeed, to 
repair our infrastructure, or, how about this, it could stay in 
taxpayers' pockets.
  What makes this system worse is that it undermines our American 
ideals. As I look across the way from the Capitol Building where I 
stand now and see the Supreme Court, written above the Supreme Court 
building, at the top, is this ideal of equal justice under law. The 
ideal that everyone will be treated equally under the law. But this 
broken criminal justice system has disproportionately impacted certain 
Americans and not others, which undermines America's core values of 
fairness and equal treatment for all.
  More than 60 percent of our prison system is comprised of racial and 
ethnic minorities. The painful reality is that if somehow African 
Americans or Latinos used drugs at different levels than Whites, that 
might explain the disparate impact. If they dealt drugs at different 
levels, yes, that might explain it. But that is not the case. African 
Americans engage in drug offenses at a lower rate than Whites but are 
incarcerated at a rate 10 times that of Whites.

[[Page S991]]

  What is alarming about the mass incarceration is that people are 
actually not committing more and more crimes. The National Research 
Council recently released a report confirming what numerous other 
studies have actually shown: Incarceration rates are actually not tied 
to crime rates. We have seen incarceration rates going up and up, but 
now crime rates are coming down.
  What is perpetuating this explosion of our prison population? It is 
the war on drugs that has created over the last 30 years alone an over-
criminalization of nonviolent individuals, which stacked our prison 
population full of Americans, disproportionately minority and 
disproportionately poor.
  Please understand that the people paying the highest price for this 
are the poor in our country. The New York Times yesterday published an 
article detailing how our jails have become warehouses made up 
primarily of people too poor to pay bail or to hire lawyers or too ill 
with mental health or drug problems to adequately care for themselves. 
If you look at our prison population, you will see that poverty, race, 
mental illness--those are the folks who are being disproportionately 
incarcerated.
  If we follow our core ideals of fairness, democracy, and justice--
then we know that mass incarceration is not who we are. That is not 
right. That the times demand that we examine this broken system and do 
those commonsense things that are needed to make our justice system 
just, to work first and foremost for our safety, to not be a gross 
waste of taxpayer dollars, and to make sure basic ideas of fairness are 
fulfilled.
  This is not just speculation. And what is so powerful about this 
moment in time, even though all I have said so far is compelling 
enough, is that we as Federal actors--the 100 Senators here, the 435 
Congress men and women, the President and the Vice President--don't 
need to figure out a way forward, make it up, design legislation based 
on our own ideas. We actually only have to look at the pathway forward 
by looking at Governors and legislatures in the States. They are so 
burdened by the costs of this unruly system, a system that is now 
plaguing--the Federal Bureau of Prisons is plaguing our country with 
its cost. What the States are doing to bear that cost is they are 
finding pragmatic, commonsense, bipartisan ways to move forward.
  In fact, what gets me excited as a Democrat is that we just have to 
look at the red States and what the red States are doing to reduce 
their prison populations. Let me give an example. States such as Texas, 
Georgia, and North Carolina are leading on this issue, and the Federal 
Government should follow.
  Texas is a State known for law and order, and known for being tough 
on crime. Yet Texans realize that being smart on crime means saving 
taxpayer dollars, using that money efficiently and effectively, 
lowering crime, and guess what, hey, we can also lower our prison 
population and empower people to be successful in life and not slip 
down that slope back toward recidivism. They have made tremendous 
strides in Texas in adopting policies that are designed to reduce their 
prison population and lower recidivism.
  In 2007, Texas boasted the fourth largest incarceration rate in the 
country. Faced with a budget projection that estimated by 2012 the 
State would need an additional 17,000 prison beds--think about that for 
a second. They saw that they were going to need to build more prisons, 
house 17,000 more prison beds, and it was going to cost them $2 billion 
in Texas. The State's legislature said: Enough of this madness. Enough 
of this craziness.
  They enacted bold reforms that would act as a model for us in the 
Federal legislature. As a result, they passed this broad-based 
legislation. Texas was able to stabilize their prison population and 
avert that budgetary disaster.
  Texas State Representative Jerry Madden, a Republican, noted in a 
recent hearing before the House Judiciary Subcommittee on Crime, 
Terrorism, Homeland Security and Investigations that the crime rate is 
now at 1968 levels. They were able to close three prisons and six 
juvenile facilities, and remarkably the Texas prison system is now 
operating at a 96-percent capacity. Commonsense reforms.
  Georgia is another State. They have made remarkable progress. They 
are showing that reducing the prison population can lead to dividends 
for taxpayers, and can lower crime. In fact, over the past 5 years, in 
terms of the racial disparities in incarceration, Georgia has reduced 
the number of Black men incarcerated in the State by 20 percent. And 
they haven't seen crime go up--quite the contrary. They have seen it go 
down.
  These States are proving that they don't have to lock up more people 
to create that safety we desire. States such as New Jersey, Texas, 
California, Virginia, Hawaii, Wyoming, Massachusetts, Kentucky, 
Connecticut, Rhode Island, Colorado, New York, South Carolina, Alaska, 
and Georgia have all seen drops in crime rates as they have been 
implementing commonsense criminal justice reform.
  So let's be clear. I am advocating for the Smarter Sentencing Act, 
but we should also be moving for bold, broad-based criminal justice 
reforms, copying the successes of red States with Republican Governors. 
We should be looking at their innovations and following their 
commonsense solutions and mirroring their success at the Federal level.
  I am speaking of reforms at the front end when people get arrested; 
reforms behind the wall--inside the prison system to address what goes 
on in prison and helping these people, and reforms on the back end when 
they come out of prison, to ensure they stay out of prison.
  Front-end reforms going on around our country are exciting, such as 
sentencing reform. What about radical ideas such as letting judges make 
decisions about sentencing and stop trying to legislate it? Judges are 
the experts. They know of the brutality of a person's circumstances. 
They can design sentences.
  These policy initiatives should address the entire system. Behind-
the-wall efforts should focus on initiatives to change the way 
prisoners experience life behind bars. To get treatment and job 
training so they don't commit future crimes. This is commonsense stuff. 
We shouldn't send people to prison and have them become criminalized or 
undermine their ability to be successful adults when they come out.
  We should also focus on that back end, this idea that we need reentry 
policies to help people get jobs, reconnect with their families, and 
become strong, full-fledged American citizens. I am speaking of things 
such as parole reform.
  To move forward we need to think big. This is what I will be 
advocating for. We can tackle this by taking a systemic approach. We 
must look at a broad-based reform agenda.
  I love the fact that we have conservatives and liberals united on 
this issue--Republicans and Democrats, red Staters and blue Staters. 
Criminal justice reform is not a partisan issue, it is an American 
issue.
  In 2010, Senators on both sides of the aisle came together to improve 
our justice system by passing the Fair Sentencing Act, which the 
President signed into law. This was a bipartisan piece of legislation 
that reduced the sentencing disparities between crack and powder 
cocaine--drugs that are pharmacologically indistinguishable. They 
changed it from 100 to 1 to 18 to 1, and I thank Senators Durbin, 
Grassley, Leahy, and Graham for their leadership on this issue.
  Last year I joined with Senator Rand Paul from Kentucky. I don't know 
how many sentences are used by people that contain the names Cory 
Booker and Rand Paul in them, but we agree on this issue. We have 
common ground, and we introduced the REDEEM Act. This legislation aims 
to keep juveniles out of the criminal justice system. We looked to stop 
acts that many other countries consider torture, such as taking 
juveniles and routinely putting them into solitary confinement where 
they are traumatized and often come out of those circumstances more 
likely to do harm to themselves or others. We are going to reintroduce 
that bill this year.
  Just last month I sat on a criminal justice reform panel right here 
in the Halls of the Senate, hosted by Van Jones on the left and Newt 
Gingrich on the right. In the last few months I have talked to Grover 
Norquist, I have

[[Page S992]]

talked to the Koch brothers' representative, their chief counsel, and I 
have talked to conservative think tanks and Christian evangelicals. All 
of us agree on this issue. This chorus of voices, this coalition, this 
courageous commitment to our country's ideals lets us know that whether 
you consider yourself a liberal or a conservative, whether you consider 
yourself moderate leaning, left or right, this is an area we can agree 
on. It will save taxpayer money, uphold our ideals of liberty and 
freedom, create safer communities, and empower individuals to be 
successful.
  Today I am excited to have joined with Senators Lee, Durbin, Leahy, 
and Cruz to support the Smarter Sentencing Act. We need to have this 
conversation about reducing Federal mandatory minimums. In fact, I love 
that the Urban Institute has stated that mandatory minimums for drug 
offenses is the single largest factor in the growth of the Federal 
prison population.
  Let me repeat that. Mandatory minimums for drug offenses are the 
single largest factor in the growth of the Federal prison population. A 
key factor in that 800-percent growth in the last 30 years has been 
driven by nonviolent drug offenders and mandatory minimums.
  This bill also would do other things. It would expand the Federal 
safety valve, giving judges greater discretion and allowing them to 
hand out their sentences. Those people who believe in separation of 
powers, let the judiciary have more space to hand down fairer sentences 
and not shackle them with laws made by legislators who don't know the 
particulars of a case. Many Federal judges have spoken out about 
mandatory minimums being unnecessarily restrictive for them in doing 
their job.
  The bill would also make the Fair Sentencing Act retroactive, which 
would allow persons convicted under the old crack-powder cocaine 
disparity to now receive a fairer sentence. With the crack-cocaine law 
changed in 2010, an individual arrested today would receive a lesser 
sentence. So making this law retroactive to impact people sentenced for 
crack cocaine offenses prior to 2010 is only fair.
  This bill could save a lot of money--hundreds of millions of dollars. 
It would give us some freedom not only to return some toward debt 
relief for this country--Lord knows we need to focus on that--but also 
to invest in other programs many people on both sides of the aisle 
support, such as reentry programs to help people stay out of prison and 
get back to a productive lifestyle. If enacted into law as the bill is 
currently scored, it would save $3 billion over the next decade alone. 
This is critically important.
  So this is a call to the conscience of the Congress. Every single day 
we pledge allegiance to our flag. That is not something anybody in this 
Chamber does as sort of a routine, perfunctory salute. We say those 
words because they mean something, and we end with this ideal that is a 
light to all of humanity--this ideal of liberty and justice for all.
  If we mean those words, then that, across the board, is what we 
should be pursuing in this body. We know in our country States are 
doing things to further uphold these ideals, that they are making 
commonsense reforms that are keeping people safe and lowering crime, 
commonsense reforms that are saving taxpayer dollars and relieving the 
burden on taxpayers and budgets, that they are passing reforms that 
liberate people from the shackles of an imprisonment that is 
unnecessary, that is directly addressing the painful disparities of 
race and poverty, and that it is empowering Americans, our brothers and 
sisters. In all of our holy texts it talks about the dignity of all 
people, whether they are behind bars or on our streets, the dignity of 
worth that empowers people to be successful, to have life and liberty 
and to pursue their happiness.
  So I say I support reforming our criminal justice system. More 
importantly, I say let's support our ideals. Let's be a nation of 
liberty and justice for all. Let's follow the lead of courageous 
governors and legislatures and let's make this Nation even better than 
it is today. I urge all Senators to promptly pass the Smarter 
Sentencing Act through the Senate.
                                 ______