Report from Governmental Affairs

Bipartisan collaboration in the Senate increases chances for a major criminal justice reform act

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A rare showing of bipartisanship in Congress led to a breakthrough this fall when Senate Republicans and Democrats collaborated to produce legislation that would make significant reforms to the nation’s criminal justice system. The ABA is a longtime advocate for the actions set forth in the legislation.

Unveiled by its sponsors in October, the Sentencing Reform and Corrections Act (S. 2123) addresses the exponential growth of the federal prison population by narrowing the application of mandatory minimum sentences and providing certain prisoners with the opportunity to earn early release.

Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, and Sen. Dick Durbin, D-Ill., who led the effort to craft the legislation, were joined by the following co-sponsors: Sen. Patrick J. Leahy, D-Vt., the ranking member of the Judiciary Committee; Republican Sens. John Cornyn of Texas, Lindsey Graham and Tim Scott of South Carolina, and Mike Lee of Utah; and Democrats Sheldon Whitehouse of Rhode Island, Cory Booker of New Jersey and Charles E. Schumer of New York.

“The broad bipartisan support for the bill is a tribute to the hard work and the shared commitment to make progress on difficult and complex issues despite strong differences in approach,” said ABA President Paulette Brown after the bill was introduced. The legislation recognizes that some of the harsh penalties adopted by lawmakers over many decades were “overly broad and have resulted in disproportionate sentences, particularly for racial minorities, and have contributed to a system that has become too costly to sustain both in fiscal and human terms,” said Brown, a partner at Locke Lord in Morristown, New Jersey.

The federal prison population has increased nearly 800 percent since 1980 and more than doubled since 1995. Prison spending increased 1,700 percent over that period, and federal prisons are operating at 131 percent of capacity. Nearly half of all federal prisoners are serving sentences for nonviolent drug crimes, a result of the proliferation of mandatory minimum sentences. In contrast, various reforms in the states have led to a 4 percent drop in state prison populations.

“This important legislation builds on the success of some states to enact ‘smart reforms’ that reduce reliance on imprisonment for nonviolent offenders, while cutting costs and protecting public safety,” Brown said.


Key provisions in S. 2123 would narrow the scope of mandatory minimum sentences to focus on the most serious drug offenders and violent criminals; increase availability of the existing “safety valve” that gives judges greater discretion in sentencing lower-level nonviolent offenders; and ensure retroactive application of the Fair Sentencing Act of 2010, which reduced the disparity in sentencing for possession of crack or powder cocaine.

The legislation also would strengthen recidivism reduction programs by allowing qualified prisoners to earn credits that would go toward early release, as well as offering the opportunity to spend a portion of their remaining sentences in residential re-entry centers, home confinement or under community supervision. In addition, the bill would allow early release of certain nonviolent inmates who are older than 60 or who are terminally ill.

Another major component of the bill would create a system of parole for juveniles sentenced to life after they have served 20 years of their sentences. The bill also would limit solitary confinement for juveniles in federal custody and allow the records of certain nonviolent juveniles to be sealed or expunged.

The bipartisan consensus in the Senate influenced House leaders to step up their criminal justice reform efforts. House Judiciary Committee Chairman Robert W. Goodlatte, R-Va., and the committee’s ranking member, Michigan Democrat John Conyers Jr., swiftly unveiled H.R. 3713. This narrower bipartisan House bill, while not addressing corrections issues, includes provisions that closely follow the Senate bill’s sentencing reforms.

Both Grassley and Goodlatte promised prompt action on their bills, which are in keeping with the Obama administration’s push for sentencing reform through the Justice Department’s Smart on Crime initiative that was unveiled by the attorney general during the 2013 ABA Annual Meeting.

This article originally appeared in the December 2015 issue of the ABA Journal with this headline: “Breaking a Logjam: Bipartisan collaboration in the Senate increases chances for a major criminal justice reform act.”

This report is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government. Rhonda McMillion is editor of ABA Washington Letter, a Governmental Affairs Office publication.

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