[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 12494-12496]
[From the U.S. 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.

[[Page 12495]]

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.
       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 
     FY1980 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 FY2000, 
     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

[[Page 12496]]

     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 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.

                          ____________________