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Speaker Paul Ryan pushes for Federal Sentencing Reform Bill

In a speech on the state of politics yesterday evening, Speaker Paul Ryan advocated on behalf of current criminal justice reform efforts and explained his change of heart on the issue. He apologized for previous comments about “makers and takers” and expanded on the negative impacts of tough on crime laws. Specifically, he stated “We ended up putting people for long prison terms, which ends up ruining their lives and hurting their communities, where we could have had an alternative means of incarceration, better means of actually dealing with the problem and basically destroying a person’s life…And so that is why I have become more of a late convert to criminal justice reform.”

He vowed to address these issues by advancing a current criminal justice bill to the House floor. “That is why – and I talked with [House Judiciary Committee Chairman] Bob Goodlatte about this last night – we’re going to being criminal justice reform bills, which are now out of the Judiciary Committee, to the House floor and advance this, because what we’re learning is, what I learned, I didn’t necessarily notice before is, you know, redemption is a beautiful thing. It’s a great thing. Redemption is what makes this place work – this place being America, society – and we need to honor redemption and we need to make redemption something that is valued in our culture, in our society, and in our laws.”

Criminal Justice Bills

The bill Speaker Ryan is referring to is the Sentencing Reform Act (H.R. 3713). A similar bill, the Sentencing Reform and Corrections Act (SRACA, S. 2123) is currently making its way through the Senate. The bills are mostly identical in sentencing reform, but the Senate bill includes additional language for prison reform. If passed, the Sentencing Reform and Corrections Act would:

  • Reduce Mandatory Minimums:

  • Currently, three-strikes legislation mandates drug offenders on their 2nd offense to 20 years in prison and offenders on their 3rd offense to life. The bill would decrease those mandatory minimums by 5 years and limit their application to only serious drug offenses and serious violent offenders.

  • Research by the Urban Institute found that reducing the length of stay by 25% for federal prisoners serving drug trafficking charges would decrease the federal prison population by 8% (16,874 less inmates) with a cost savings of over $500 million by 2023.

  • Broaden Safety Valves:

  • This law would broaden the existing safety valve so that nonviolent offenders can be sentenced below the mandatory minimum if they meet certain requirements. It would also make the Fair Sentencing Act (FSA) of 2010 retroactive, allowing approximately 5,800 crack cocaine offenders to be resentenced under the reforms that addressed the 100-to-one disparity between crack and powder cocaine.

  • Research by the Urban Institute found that making the Fair Sentencing Act retroactive would result in 3,695 releases in the first year with a cost savings of almost $229 million.

  • Time Credits and Parole:

  • The bill also allows some federal prisoners the option to earn time credits for completing rehabilitative programs. Earned time credits are not an extension of good time credits; rather, it rewards offenders who have completed specific rehabilitative programs with the option “cash in” their earned time somewhere other than prison (halfway house, community corrections, etc.). The bill would also create limited parole eligibility for offenders who committed their crimes as juveniles. Offenders are only eligible for parole under this provision if they have served at least 20 years in prison and are deemed not a risk to public safety.

  • Early Release:

  • S. 2123 would allow some elderly inmates to serve the remainder of the sentence on home confinement if the following requirements are met:

  • Offender is at least 60 years old;

  • Has served at least two-thirds of their sentences;

  • Has no current or history of violent crimes, sex offenses, or terrorism; and,

  • The BOP decides they are not a risk to public safety.

  • The bill would also allow offenders that are terminally ill to be eligible for release regardless of age or time served if they have no prior violent crimes and are not considered a threat to public safety.

Republican Push back

There is broad bipartisan support for the bill, including support from the Koch brothers, former skeptic and Judiciary Committee Chair Chuck Grassley (R), and the White House. In fact, President Obama mentioned the Act in his State of the Union, calling Congress to “work together this year on bipartisan priorities like criminal justice reform”

Despite support, powerful Republican opponents like Presidential nominee Ted Cruz and Senator Tom Cotton have derailed the bill’s passage. Opposition for the bill is primarily centered around two issues: public safety and mens rea reform. Speaking to the bill, Presidential nominee Ted Cruz recently said "Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents."

Public Safety

Senator Tom Cotton (R) is leading the opposition with concerns that the Act reduces “sentences not for those [prisoners] convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.”

Cotton is right that in his assertion that this bill applies to traffickers; 50 percent of the federal prison population is charged with drug offenses and over 95 percent are charged with trafficking. Where Cotton is wrong is the role that the offenders had in drug trafficking. Surprisingly, most offenders sentenced on trafficking charges played a very minor role. The Urban Institute found that only 14 percent of those charged with drug trafficking played leading or managing roles in the offense. Further, Over 75 percent of drug offenders did not have a weapon at the time of the offense and nearly half (45%) had minimal or no criminal history.

In a letter to Congressional members, former law enforcement officers expressed their opposition for the bill,

“Its application of lighter penalties retroactively to already-convicted and sentenced prisoners will turn the finality of thousands of judicial decisions on their head, undermine public expectations about justice and cost millions of dollars. These consequences are undeniably harmful to the interests of public safety and justice. Now is not the time to deny law enforcement authorities the essential tools they need to fight crime and terrorism here at home.”

The law enforcement officers claimed that passing this bill would undo years of progress in reducing the crime rate, “Our system of justice is not broken. Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back.”

While there does appear to be a correlation between incarceration and crime, research has consistently negated this relationship. PEW found that the 10 states with the largest decreases in imprisonment (2008-2013) had an average crime drop of 13 percent and the 10 states with the largest increases in imprisonment had an average crime drop of 8 percent. Similarly, research by the Brennan Center for Justice found no relationship between incarceration and crime. While there has been a significant reduction in crime, this reduction has been found in most of the developed world, despite major differences in incarceration. This indicates that something other than harsh criminal justice tactics have been the cause.

Mens Rea

Probably the most interesting and prevalent hurdle pertinent to the passing of this law is the mens rea argument. A criminal act is generally understood as the composition of two parts: actus reus, the act itself, and mens rea, or “guilty mind”, or understanding the act is wrong. Currently, there are about 5,000 federal statutes and 300,000 regulatory offenses in the Code of Federal Regulations and many do not have mens rea requirements. It is entirely feasible that someone could unwittingly violate one of these regulatory laws and face criminal penalties. Those in favor of mens rea reform advocate that the very core of any criminal conviction is the intent to commit the crime, and any bill that attempts to reform criminal justice must include mens rea.

The House will not approve the criminal justice bill without a provision that addresses mens rea. Defending this provision, Senator Orrin Hatch (R) said “Without adequate mens rea protections—that is, without the requirement that a person know his conduct was wrong, or unlawful—everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong.”

The Democrats, including the White House and Justice Department, are opposed to this provision, concerned that it will allow a sort of willful ignorance that will likely benefit big corporations. Specifically, they are worried that a mens rea provision will make it harder to prosecute regulatory violations that put the public’s safety at risk (excessive pollution, contaminating water supplies etc.)

Chief of the Justice Department’s criminal division, Assistant Attorney General Leslie Caldwell, said passing this provision would “seriously harm our basic ability to prosecute a wide array of federal crimes”. Additionally, “It’s quite challenging to prove that very senior corporate executives were aware of criminal conduct that was going on within their corporations,” she said. “But … they may have consciously avoided knowing facts, and under the current law, intent can be satisfied by willful blindness.”

Many supporters of the Sentencing Reform and Corrections Act criticize mens rea supporters of using a necessary and bipartisan bill as a tool to pass elements of a partisan agenda. A recent report on recidivism by the US Sentencing Commission found that nearly half of all offenders released in 2005 recidivated within 8 years after release. One can only hope that politicians can look past partisan politics to finally elicit the changes so desperately needed in criminal justice policy.

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