If Not Now, When? A Closer Look at the Sentencing Reform and Corrections Act of 2015
Although the bill is at a standstill, the Sentencing Reform and Corrections Act of 2015, if passed would, arguably, be one of the most significant criminal justice reforms to occur in the last twenty years. Practitioners should be aware that the Sentencing Reform bill permits a court to reduce the mandatory minimum prison term that is imposed on certain nonviolent defendants. This applies to defendants who are convicted of a high level, first time or low level, repeat drug offense, which includes unlawful import, export, manufacture, or distribution of, or possession with intent to distribute a controlled substance. The bill also expands safety valve eligibility, which permits the court to impose a sentence below the mandatory minimum for certain non-violent and cooperative drug defendants with a limited criminal history. This provision is subject to appellate review, does not apply retroactively, and disqualifies relief for offenders with prior serious drug or violent convictions.
Additionally, the bill reduces the enhanced mandatory minimum prison term for certain defendants who commit a (1) high level repeat drug offense, (2) use a firearm in a drug offense or crime of violence after a prior conviction for such offense, (3) or unlawfully possess a firearm after three or more prior convictions. The bill eliminates the gap in current sentencing laws through the reduction of the mandatory minimum for armed career criminals from 15 to 10 years. Both provisions may be applied retroactively, however, only after the court “cons[iders] the factors set forth in section 3553(a) of title 18, United States Code, the nature and seriousness of the danger to any person or the community, and the post-sentencing conduct of the defendant.”
The bill makes the Fair Sentencing Act of 2010 retroactive and permits resentencing of a convicted crack cocaine offenders sentenced before August 3, 2010. This legislation also creates new mandatory minimum prison terms for: (1) interstate domestic violence that results in a victim’s death, and (2) individuals who provide goods and services to terrorists, to any persons to developing weapons of mass destruction, or countries subject to an arms embargo.
The Corrections Act requires the Bureau of Prisons (BOP) to provide appropriate recidivism reduction programming and productive activities to all eligible prisoners, these programs would reduce the likelihood of a person reoffending. Further the BOP will provide pepper spray to all its officers and employee in order to reduce violence within the prison walls. The bill requires the Department of Justice to develop the Post-Sentencing Risk and Needs Assessment System. Additionally, Presentence investigation reports are required to contain certain information such as substance abuse history, military service, and veteran status. This bill makes pilot programs to release nonviolent elderly offenders from prison facilities to home detention permanent and expands the eligibility for such released. Finally, certain records of juvenile nonviolent offenders must be automatically sealed and expunged, and juvenile solitary confinement is prohibited, except in limited circumstances.
It is clear that our system is in need of repair. According to The Hill, “America has only 5 percent of the world’s population but 20 percent of the world’s prison population.” Proponents argue that this legislation is the most comprehensive set of reforms since the 1980s when Congress began passing laws to battle drug crime. Senators have negotiated for months to produce bipartisan sentencing reform legislation. While originally opposed to the idea, Senator Grassley of Iowa, who leads the Senate Judiciary Committee, said he was “persuaded to support the bill, in part, because it doesn’t seek to end all mandatory minimum sentences.”
Although there is continued debate as to whether the bill goes far enough, many lay people and members of congress agree that it is a good step in sentencing reform. Marc Mauer, executive director of The Sentencing Project said, “The Sentencing Reform and Corrections Act is the most substantial criminal justice reform legislation introduced since the inception of the ‘tough on crime’ movement and is the best indication that we have that those days are over.” Critics argue that while sentencing reform aims to reduce punishment without impacting the crime rate, this is seldom effective. These critics suggest that sentencing reform does nothing more than release criminasl early, which allows them to reoffend, thus increasing the crime rate. The President of the Federal Law Enforcement Officers Association, Jon Adler, said the group does not “oppose rehabilitation programs for prisoners, but sharply disagrees with the effort to shorten drug sentences.” Adler believes that decreasing the mandatory minimum sentences is an incentive for drug dealers to continue their peddling.
James Comey, director of the FBI, also provided a note of caution on the legislation. Comey said, as we seek to make changes to sentencing laws, “we should be mindful of how the era of falling crime rates in the early 1990s was also an era of tough sentencing.” Additionally, there is anticipated push back from prosecutors due to the bills retroactivity provisions. However, a retroactive guideline is not a get-out-of-jail-free-card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence.” In short, this bipartisan bill is a landmark in the area of criminal law and criminal justice reform. While the bill would apply to federal crimes and federal prisoners that house over 200,000 inmates, which is just a fraction of the US population detained, this bill is necessary to revise the tough mandatory sentencing laws adopted during the wave of drug violence between the 1980s through the 1990s. We need prison reform, and this bill is a step in the right direction. President Obama has stated “he wants the bill on his desk to sight by the end ,” but who knows if the bill will even get to his desk by the end of his term.