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November 01, 2015

Sentencing reform legislation ready for floor votes in Senate and House

Judiciary committees in both the Senate and House have approved separate bipartisan bills to make significant changes in federal sentencing laws, setting the stage for full floor action on final legislation.

S. 2123, approved Oct. 22 by the Senate Judiciary Committee, and H.R. 3713, which garnered House Judiciary Committee approval Nov. 18, both would narrow the scope of mandatory sentences to focus on the most serious drug offenders and violent criminals to address the burgeoning federal prison population. 

In letters to the committees, ABA President Paulette Brown commended the Senate and House committee leaders for guiding bipartisan negotiations that have resulted in a “worthy consensus on complex and difficult sentencing and corrections issues.” She said that, although neither bill goes as far as the ABA would prefer in overhauling federal sentencing policy, both measures take “a number of important steps forward to reduce reliance on mandatory minimum sentences for low-level drug offenders and to improve fairness and the achievement of justice in the federal system.”

In addition to narrowing the applicability of some drug–related mandatory minimums and reducing others, both bills would expand “safety valve” authority that allows judges discretion in sentencing lower-level non-violent offenders. The bills also would ensure retroactive application of provisions of the Fair Sentencing Act of 2010, which reduced the disparity in sentencing between crack and powder cocaine. Brown said that while the ABA, which opposes mandatory minimum sentencing, is disappointed that the Senate would add two new mandatory minimum provisions, she indicated that both bills would create a more just sentencing system than the one currently in place.

“Enactment will help focus prosecutorial and correctional resources on offenders who commit serious crimes that pose the greatest risk to public safety and will permit more sentencing flexibility for low-level, nonviolent offenders whose role and culpability will now receive more careful and balanced consideration by sentencing judges,” she wrote.

Brown also expressed support for provisions in the Senate bill to expand recidivism-reducing prison programs that allow participating prisoners to earn credits toward early supervised release and the expansion of compassionate release for elderly, terminally ill prisoners. The association also supports Senate provisions to end federal juvenile life sentences without parole, to ban juvenile solitary confinement, and to permit juveniles to obtain expungement of certain criminal records.

The House Judiciary Committee is expected to act on its own corrections bill to expand prison-based programming by the end of the year.

During its Nov. 18 markup, the House committee also approved H.R. 4002, which includes a provision to establish a default mens rea standard of “knowingly” to apply to new criminal and regulatory provisions imposing penalties that include imprisonment. The provision addresses problems related to enactment of numerous federal criminal laws law that do not specify a standard or requirement for the element of criminal intent. The ABA supports enactment of such a provision to apply only on a prospective basis.

The ABA also supports authorization for a comprehensive inventory of criminal statutory and regulatory laws.

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