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Federal Sentencing Reform


Over the last 30 years the United States has come to rely on its criminal justice system and lengthy prison terms more than any other nation.  With just 5% of the world’s population, the U.S. holds nearly a quarter of the world’s prisoners, including one-third of all women incarcerated worldwide. Over-reliance on prison is fiscally unsustainable and has imposed a burdensome human toll and a disparate impact on African-American and Latino persons and communities.

The federal prison population has increased nearly 800% since 1980 and more than doubled since 1994, with spending up 1700% over that period, and federal prisons are currently operating at 131% of capacity. This is due in significant degree to the proliferation of mandatory minimum sentences.  Nearly half of all federal prisoners are serving sentences for nonviolent drug crimes.

There is consensus across the political spectrum that our criminal justice system is out of balance and in need of significant reform. Many states have enacted bipartisan “smart-on-crime” reforms that achieve significant cost savings and reduce crime. 

Legislative Status

A bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Dick Durbin (D-IL) on October 1, 2015 introduced comprehensive legislation aimed at recalibrating prison sentences for certain drug offenders, narrowing mandatory minimum sentences to target violent criminals, and granting judges greater discretion at sentencing for lower-level drug crimes. The package also seeks to curb recidivism by helping prisoners successfully reenter society. S. 2123, the Sentencing Reform and Corrections Act of 2015 (SRCA), is also sponsored by Senators John Cornyn (R-TX), Sheldon Whitehouse (D-RI), Mike Lee (R-UT), Charles Schumer (D-NY), Lindsey Graham (R-SC), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) and Tim Scott (R-SC). 

The SRCA bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening the authority of federal judges to sentence below set mandatory minimums for individuals with criminal histories that do not include serious drug or violent offenses. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences, a provision that would make an estimated 6,500 federal prisoners sentenced prior to the change in law eligible to petition for sentence reduction.

In addition to reducing prison terms for certain offenders through sentencing reform, the bill includes provisions from the prison reform CORRECTIONS Act introduced by Senators Cornyn and Whitehouse.  These provisions would allow qualifying inmates to earn reduced sentences through participation in recidivism reduction prison programs including work, job training, drug treatment and faith-based activities.

The legislation also includes provisions to ban solitary confinement for juveniles, allows juveniles sentenced to life to seek a reduction in sentences after 20 years, and provides authority for expungement of juvenile records for most non-violent offenses.

The Senate Judiciary Committee held a hearing on S. 2123 October 19. The Senate Judiciary Committee approved S. 2123 in a 15-5 vote on October 22, after rejecting several amendments.

Since the October markup, the number of Senators cosponsoring S. 2123 has grown to 28, comprised equally of 14 Republicans and 14 Democrats. However, reflected in the Judiciary Committee markup vote, there is active opposition to the bill.  Senate Majority Leader Mitch McConnell (R-KY) has maintained for several months that he will not schedule the bill for floor action until it gains broader Republican support. To gain that support and overcome opposition to the bill, the bipartisan cosponsors agreed  changes to key provisions that more clearly limit the application of sentencing reforms to non-violent, non-serious offenders in late March 2016.

Spurred in part by the Senate, House Judiciary Chair Bob Goodlatte (R-VA) and Ranking Member John Conyers, Jr. (D-MI) reached agreement on a bipartisan House counterpart bill, H.R. 3713, the Sentencing Reform Act of 2015, introduced on October 8, 2015.  H.R.3713 has 21 cosponsors and has been jointly referred to the House Judiciary and House Energy and Commerce Committees.

The House Judiciary Committee approved H.R. 3713 by voice vote on November 18, 2015.  It also approved on November 18 by voice vote a separate bill, H.R. 4002, that contains a provision that would provide for a default criminal intent element – mens rea – for all federal criminal offenses that do not address or are silent as to a criminal intent requirement.  On February 11, 2016, the House Judiciary Committee by voice vote approved H.R. 759, the Recidivism Reduction Act, a bill that closely parallels Title 2 of S. 2123, the Senate SRCA legislation, providing for expanded in-prison programming and early supervised release of prisoners into the community. The House Judiciary Committee approved bipartisan legislation to overhaul federal civil asset forfeiture laws, H.R. 5283, the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2016 (DUE PROCESS Act) by voice vote on May 25, 2016. The House is expected to package together the several separately approved Judiciary bills for floor action during a "criminal justice reform week" later this year.

Key Points

  • Reform of the federal criminal justice system is urgently needed to restore balance to a system in crisis.  Many states facing unsustainable prison growth have enacted sentencing reforms to expand alternatives to incarceration and shorten sentences for non-violent offenders, with good results. 
  • Strong sentencing reform is the key to addressing federal over-incarceration, like that proposed in the Senate Sentencing Reform and Corrections Act (S. 2123) and the House Sentencing Reform Act (H.R. 3713), to reduce the length of mandatory minimums for nonviolent drug offenders, modify the federal safety valve to provide sentencing judges with discretion to sentence below mandatory minimum floors in qualified cases, and give retroactive effect to the 2010 Fair Sentencing Act.  
  • The ABA urges House and Senate members to cosponsor or support H.R. 3713 and S. 2123, respectively, and to support strong sentencing reform provisions in any final comprehensive reform package.

Sentencing Reform Resources

ABA Letter Urging House Judiciary Committee Approval of Sentencing Reform Legislation

ABA Letter Urging Senate Support for Sentencing Reform Legislation

ABA Letter Urging Senate Judiciary Approval of Sentencing Reform Legislation

SCRA Section by Section

Drivers of Growth in the Federal Prison Population

Over-Incarceration Resources

Over-Incarceration One-Pager

Facts on Over-Incarceration in the U.S.

Fact Sheet on US Incarceration of Juveniles

State by State Criminal Justice Reforms

Federal Prison Spending at the U.S. Department of Justice: Unsustainable and Dangerous

ABA Policy

The ABA supports comprehensive federal sentencing reform to address over-incarceration, including expansion of alternatives to prison, greater use of drug courts and community confinement for drug offenders, and restoration of discretion for sentencing judges.

ABA Sentencing Reform Policy (2004)

ABA Racial and Ethnic Profiling Policy (2008)

ABA Racial Disparities in the Criminal Justice System Policy (2004)

ABA Sentencing Policy on Effective Criminal Sanctions (2007)