[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 12974-12976]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         SMARTER SENTENCING ACT

  Mr. DURBIN. Madam President, yesterday, I introduced the Smarter 
Sentencing Act, bipartisan legislation that would reform our drug 
sentencing laws to make Federal sentencing policy smarter, fairer, and 
more fiscally responsible.
  This bill, which is cosponsored by Republican Senator Mike Lee and 
Judiciary Committee chairman Patrick Leahy, would reduce certain 
mandatory minimum sentences for nonviolent drug offenses and give 
Federal judges more ability to impose individualized sentences for 
certain offenders. These modest changes will allow Federal law 
enforcement to focus limited government resources on the most serious 
offenders and public safety risks.
  Why is this legislation needed? Let's look at where we are as a 
country. We incarcerate more individuals, including per capita, than 
any other nation in the world. Our rivals, with far lower incarceration 
rates, include countries like Rwanda, Cuba, China, and the Russian 
Federation.
  And our incarceration rates are only growing over time. We have 500 
percent more inmates in our Federal prisons than we did 30 years ago. 
For example, in 1980 we had fewer than 25,000 in Federal custody, and 
today there are more than 219,000.
  Our Federal prison system is at nearly 40 percent over capacity--with 
more than 50 percent overcrowding at high-security facilities. As the 
Government Accountability Office has explained, this overcrowding is 
not only creating financial strain, but it is jeopardizing the safety 
of both inmates and prison guards.
  And who are we incarcerating with our limited resources? Nearly 50 
percent of Federal inmates are serving sentences for drug offenses.
  Let's be clear: The price tag for this system is unsustainably high 
in terms of both financial and human costs. What we spend on Federal 
incarceration has increased more than 1100 percent in the last 30 
years. The number was less than $330 million in 1980 and had 
skyrocketed to more than $6.6 billion by last year.
  Our current incarceration policies are swallowing our limited law 
enforcement budget and forcing choices that many lawmakers and 
taxpayers would not agree with. Incarceration and detention costs 
account for nearly a third of the Department of Justice's discretionary 
budget. This threatens funding for Federal prosecutions, Federal law 
enforcement, funding and grant money for State and local law 
enforcement, and support for treatment, intervention, and reentry 
programs.
  In the era of sequestration, we are faced with a choice: We can 
either change our sentencing policies or potentially suffer an erosion 
in public safety. We need to take steps to control Federal prison 
spending now or we will face significant cuts in the resources 
available for other pressing criminal justice priorities like making 
sure there are police on the streets, crime prevention programs in 
place, and an ability for offenders to reintegrate into their 
communities rather than become safety risks.
  Many States across the country recognize that we are at a crossroads 
and they are pursuing important reforms with a high degree of success. 
A New

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York Times article published this week explains the ``new approach to 
crime'' many States are taking and the resulting decline in State 
prison populations. The Federal Government should follow suit.
  And let's never forget the human costs. We hear every day about 
heartbreaking cases of mothers, fathers, uncles, aunts, and children 
who are behind bars for far too long sometimes decades--for nonviolent 
offenses. This harms communities and families.
  One such case is a woman I came to know well, Eugenia Jennings. 
Because of unjust sentencing laws, she was incarcerated in Federal 
prison at the age of 23 for more than two decades for a nonviolent drug 
offense involving the exchange of a small amount of drugs for clothing. 
Eugenia had three children who were forced to grow up without their 
mother.
  Even the sentencing judge acknowledged the injustice of Eugenia's 
sentence, lamenting ``there is nothing this court could do'' because of 
the laws that existed. Eugenia was a model prisoner winning awards, 
completing substance abuse programs, and serving as a model employee 
who worked at a call center and sewed thousands of pairs of shorts for 
the military. Eugenia suffered from a serious and rare form of cancer 
while in Federal custody. Eugenia would still be serving a sentence 
today--a sentence that would be costing taxpayers hundreds of thousands 
of dollars and depriving children of a mother--had it not been for the 
highly unusual grant of a Presidential commutation. Who benefited from 
the many years Eugenia spent in prison?
  How do we fix this problem or at least take an important step toward 
solving it? We have learned that our exploding prison population is in 
large part due to ineffective sentencing laws and the increasing number 
and length of Federal mandatory minimum sentences. Mandatory sentences, 
particularly drug sentences, can take individualized review out of a 
judge's hands by requiring a one-size-fits-all sentence imposed by 
Congress. And the number of Federal mandatory sentences has doubled 
during the last 20 years.
  More than 60 percent of Federal district court judges agree that 
existing mandatory minimums for all offenses are too high. Many think 
they are just bad policy. Justice Anthony Kennedy said: ``I am in 
agreement with most judges in the federal system that mandatory 
minimums are an imprudent, unwise and often unjust mechanism for 
sentencing.''
  The Judicial Conference of the United States, which represents all 
Federal judges, has ``consistently opposed mandatory minimum sentences 
for more than 50 years.'' The bipartisan U.S. Sentencing Commission 
recently said, after studying this issue in a 369-page report, ``[T]he 
Commission unanimously believes that certain mandatory minimum 
penalties apply too broadly, are excessively severe, and are applied 
inconsistently. . . .''
  We subject our Federal judges to a rigorous confirmation process. 
Congress should allow these judges to use their legal and law 
enforcement expertise to do their jobs and not micromanage their 
sentencing decisions. It is important in achieving both justice and 
public safety to have sentences tailored to the individual facts, 
background, and circumstances of each case and defendant. Only the 
judge who hears a case has the ability to set such a sentence.
  We are at a crucial moment in history. We can no longer afford 
sentencing policies that are not working, are draining limited Federal 
funds, are leading to unjust sentences, and are failing to make our 
families and communities safer.
  As a result of these problems, some of the country's leading 
sentencing experts have called for the repeal of all Federal mandatory 
minimums. The Smarter Sentencing Act takes more modest but important 
steps in modernizing drug sentencing policy.
  First, it modestly expands the existing Federal safety valve, which 
allows Federal judges to sentence certain nonviolent drug offenders 
below existing mandatory minimum sentences. This change will only apply 
to certain nonviolent drug offenses that do not involve weapons. It is 
supported by nearly 70 percent of Federal district court judges.
  Second, the bill will permit those serving sentences that Congress 
has determined are unjust and racially disparate to petition for a 
reduction in their sentence. I authored the bipartisan Fair Sentencing 
Act in 2009 to help reduce the sentencing disparity between crack and 
powder cocaine offenses and to eliminate the mandatory minimum sentence 
for simple possession of crack cocaine. While African Americans were 
approximately 30 percent of crack users, they comprised more than 80 
percent of those convicted of Federal crack offenses.
  The bill passed the Senate unanimously. As one Judiciary Committee 
Republican stated, ``[W]e are not able to defend'' the unfair sentences 
that existed before the Fair Sentencing Act--sentences that 
disproportionately affected African Americans. Another stated that 
these changes were ``long overdue'' and that ``Congress should act 
without any more delay to start to reduce the sentencing disparity.'' A 
third Republican member of the Judiciary Committee stated, ``The law 
created inequities. . . . We are working and will continue to work to 
roll back the injustice that was done.''
  Because of the timing of their sentences, some individuals are still 
in jail serving lengthy, pre-Fair Sentencing Act sentences that 
Congress has determined are unfair. To be clear, the Smarter Sentencing 
Act does not automatically reduce a single sentence in this respect. 
But it allows individuals sentenced under the old crack-powder 
sentencing disparity to petition courts and prosecutors for a review of 
their case, consistent with changes in the law made by the Fair 
Sentencing Act. Considering all of the circumstances, including public 
safety and the nature of the offense, a judge can grant or deny any 
petition. Federal courts successfully and efficiently conducted similar 
crack-related sentence reviews after 2007 and 2011 changes to the 
Sentencing Guidelines. Based on recent U.S. Sentencing Commission data, 
this change in the law alone could significantly reduce prison 
overcrowding and save taxpayers more than $1 billion.
  Third, the bill lowers mandatory penalties for certain nonviolent 
drug offenses. These modifications do not apply to, for example, 
statutory penalties involving firearms or bodily injury. And this bill 
does not repeal any mandatory minimum sentences. Rather, it reduces 
certain nonviolent drug mandatory sentences so that judges can 
determine, based on individual circumstances, when the harshest 
penalties should apply. Let's allow these judges to do their jobs.
  This bill crosses party lines; it is a bipartisan compromise from a 
Republican from Utah and a Democrat from Illinois. This bill is the 
right thing to do, which is why it is endorsed by faith leaders from 
the National Association of Evangelicals to the United Methodist 
Church. This bill would improve public safety, which is why it is 
endorsed by the National Organization of Black Law Enforcement 
Executives. And this bill is good policy, which is why it is endorsed 
by groups on the right and left, ranging from Heritage Action to the 
ACLU. It is endorsed by Justice Fellowship of Prison Fellowship 
Ministries, Grover Norquist, the Leadership Conference on Civil and 
Human Rights, the NAACP, the Sentencing Project, Open Society Policy 
Center, the ABA, the Constitution Project, the National Association of 
Criminal Defense Lawyers, NAACP Legal Defense and Educational Fund, 
Families Against Mandatory Minimums, the Lawyers' Committee for Civil 
Rights Under Law, Drug Policy Alliance, and Brennan Center for Justice, 
among others.
  I thank my partner in this effort, Senator Lee. We have taken many 
months to study this problem and work together on a bipartisan 
solution.
  I am grateful to Senator Leahy, the chairman of the Judiciary 
Committee, for joining this effort and, as always, for his leadership 
on criminal justice reform.
  I urge my colleagues to support the Smarter Sentencing Act.

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