Washington • In the last three decades, the nation’s federal prison population has increased 500 percent. Prisons across the country are more than 40 percent over capacity — some higher than 50 percent — with more than half of prisoners serving time for drug offenses.
The burgeoning problem is the result of federal sentencing guidelines that left judges with little wiggle room and first-time offenders facing lengthy stays in the big house.
It’s an issue that is drawing bipartisan attention on Capitol Hill, with Sen. Mike Lee leading the Republican effort to reform the sentencing system. “It’s not about whether or not we’re going to be tough on crime, it’s first and foremost about restoring justice to our justice system,” says Lee, R-Utah. “The punishment has to fit the crime.”
Lee has teamed up with Democratic Sen. Dick Durbin of Illinois to push legislation that would expand what’s called the “safety valve,” allowing some lesser offenders — those with little criminal history who weren’t violent and cooperated with authorities — to escape mandatory sentences.
It also allows prisoners sentenced for crack-cocaine possession to seek to reduce their sentences; A 2010 law made the sentences for crack cocaine and powder cocaine more equitable but didn’t address those already serving mandatory sentences.
Targeting resources • Attorney General Eric Holder last year directed the Justice Department to avoid slapping some low-level and non-violent drug offenders with charges that carry mandatory sentences, all part of an effort to decrease prison populations and target more dangerous criminals.
Former U.S. Attorney for Utah Brett Tolman testified before Congress a few months ago that prosecutors want the leeway to charge offenders without fear that the sentence will be excessive.
“Rather than focusing valuable resources on the highest levels of criminal conduct, the reality is that today’s federal system is all too often mired in the pursuit of low-level offenders,” Tolman said.
While the reform movement seems to be gaining strength, action has been slow.
Senate Judiciary Chairman Patrick Leahy said Thursday that he was encouraged that bipartisan support is coalescing around reforming the sentencing and hopes to call a hearing soon on the bill.
“We simply cannot ignore the unsustainable growth of our federal prison population any longer,” Leahy said. “Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts — doing nothing makes us less safe.”
Lee and Durbin’s legislation doesn’t get rid of mandatory minimum sentences but provides exceptions for some offenders. In a polarized Congress, which has trouble passing budgets, let alone comprehensive reform, Lee says this bill has found support from both sides because it’s common sense.
“Justice is neither left nor right, it’s neither Republican nor Democratic,” says Lee, a former assistant U.S. attorney for Utah. “It’s one of the things that explains why you have Republicans, Democrats, conservatives, liberals and everyone who has seriously looked at this issue expressing interest and coming together and calling for reform.”
Durbin says that while mandatory sentences were once thought of as a strong deterrent the impact has been largely unfair, a burden for taxpayers and a threat to public safety.
“Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions,” Durbin said.
The other side • The legislation, though, has its opponents, including former Utah prosecutor Scott Burns, the executive director of the National District Attorneys Association, who argued before Congress that the sentencing guidelines are helpful in combating crime.
“Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences,” Burns said. “While federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge.”
Moreover, Burns says that mandatory sentences are helpful to prosecutors who want to leverage cooperation from defendants and witnesses as a way to target those higher up in drug operations.