Grassley finally on board with criminal justice reform: How good is the bill?

Yesterday Senator Chuck Grassley stood with colleagues from both parties to unveil the Sentencing Reform and Corrections Act of 2015. President Barack Obama advocated for criminal justice reform in this year’s State of the Union address, but six months ago, prospects for any progress toward that goal seemed dim. All paths to passing such a bill led through the Senate Judiciary Committee, which Grassley chairs. As Senator Richard Durbin noted yesterday, Grassley had been “very skeptical” about criminal justice reform and “said so repeatedly.” For example, Grassley delivered a harsh Senate floor speech in March, accusing the “leniency industrial complex” of misleading people about “nonviolent” or “low level” drug offenders. Who would have guessed the same man would stand up now to hail this “landmark piece of legislation” as the “biggest criminal justice reform in a generation” and the product of “a very thoughtful bipartisan deliberation by the Congress”?

I enclose below a summary of the Sentencing Reform and Correction Act’s key points, along with a press release with links to the full bill text and a section-by-section analysis. I also included several perspectives on the bill’s value. Reform advocates have generally embraced the step; the non-profit Sentencing Project called it “momentous legislation,” ending the “disastrous era of ‘tough on crime’ politics.” On the other hand, Shane Bauer argued in Mother Jones that the bill “doesn’t live up to its own hype.”

Scroll to the end of this post to read the full text of Grassley’s March 10 floor speech, which underscores how hard his colleagues on the Judiciary Committee had to work to bring the chairman around.

Any relevant comments are welcome in this thread. I’ve never found much to admire about tea party hero Senator Mike Lee of Utah, but all credit to him for making criminal justice reform a priority. At yesterday’s press conference, he recalled a story that ignited his passion to work for change. When Lee was an assistant U.S. attorney, a case came to his office involving a father of two in his mid-20s. The man had “made some mistakes,” selling marijuana three times over a 72-hour period while carrying a gun. He was slapped with a 55-year mandatory minimum sentence. “I don’t mean to condone what he did,” Lee said, “but I’ve never met anyone who thought a 55-year sentence was appropriate in that case. He’s going to be in jail until he’s 80.”

One-page summary released by the Senate Judiciary Committee:

THE SENTENCING REFORM AND CORRECTIONS ACT of 2015

Key Provisions Contained in the Bill:

•  Reforms and Targets Enhanced Mandatory Minimums for Prior Drug Felons: The bill reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provision, but it allows those enhanced penalties to be applied to offenders with prior convictions for serious violent and serious drug felonies.

•  Broadens the Existing Safety Valve and Creates a Second Safety Valve: The bill expands the existing safety valve to offenders with more extensive criminal histories but excludes defendants with prior felonies and violent or drug trafficking offenses unless a court finds those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism. The bill also creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum. But defendants convicted of serious violent and serious drug felonies cannot benefit from these reforms.

•  Reforms Enhanced Mandatory Minimums and Sentences for Firearm Offenses: The bill expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing. The bill also raises the statutory maximum for unlawful possession of firearms but lowers the enhanced mandatory minimum for repeat offenders.

•  Creates New Mandatory Minimums for Interstate Domestic Violence and Certain Export Control Violations: The bill adds new mandatory minimum sentences for certain crimes involving interstate domestic violence and creates a new mandatory minimum for providing weapons and other defense materials to prohibited countries and terrorists.

•  Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively

•  Provides for Prison Reform based on the Cornyn-Whitehouse CORRECTIONS Act: The bill requires the Department of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs. Eligible prisoners who successfully complete these programs can earn early release and may spend the final portion (up to 25 percent) of their remaining sentence in home confinement or a halfway house.

•  Limits Solitary Confinement for Juveniles in Federal Custody and Improves the Accuracy of Federal Criminal Records

•  Provides for a Report and Inventory of All Federal Criminal Offenses

October 1 press release from the Sentencing Project (emphasis in original):

Senate Leaders Reach Deal on Bipartisan Criminal Justice Reform Bill

Momentous Legislation Indicates “Tough on Crime” Days are Over

Washington, D.C. — Today, Republicans and Democrats in Congress are coming together to end a disastrous era of “tough on crime” politics. The Sentencing Reform and Corrections Act, introduced today by Senate Judiciary Chairman Chuck Grassley (R-IA), Minority Whip Dick Durbin (D-IL), Republican Whip John Cornyn (R-TX), Senator Sheldon Whitehouse (D-RI), Senator Mike Lee (R-UT), Senator Chuck Schumer (D-NY), Senator Lindsey Graham (R-SC), Senator Cory Booker (D-NJ), and Senator Tim Scott (R-SC), takes a number of steps forward to reverse harsh penalties that have come at a ruinous cost to families and taxpayers while producing diminishing returns for public safety.

Among other things, the legislation would:

•  Expand the existing safety valve and give judges new discretion to exempt a substantial number of individuals convicted of non-violent drug offenses from harsh mandatory minimum sentences.

•  Make the Fair Sentencing Act of 2010, which scaled back the unfair sentencing disparity between crack and powder cocaine, retroactive to allow more than 6,000 current prisoners to petition for sentence reductions.

•  Provide sentence reduction incentives for prisoners who take part in rehabilitative programming.

•  Limit solitary confinement for juveniles in federal custody and provide protections around juvenile records in certain instances.

“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 we have that those days are over,” said Marc Mauer, Executive Director of The Sentencing Project. “The broad bipartisan support for the bill is a tribute to the hard work in Congress on these issues over the past two years and suggests that prospects for passage of the legislation are promising even in the current era of a divided Congress.

“The bill reflects a recognition that the harsh penalties adopted by lawmakers in recent years have been overly broad, costly to taxpayers, and have produced diminishing returns for public safety. Among the most salutary provisions of the legislation is the measure to retroactively apply the crack cocaine sentencing reductions of the Fair Sentencing Act of 2010 to individuals serving time for these offenses in federal prison. There is no reason why someone sentenced for such an offense the day before that legislation was enacted should be serving more time in prison than another person sentenced just after enactment. This will bring a greater measure of fairness and racial justice to the federal sentencing structure, and can serve as a model for how to address other areas of excessive punishments.”

Regarding the bill’s reforms for juveniles, Ashley Nellis, a senior research analyst at The Sentencing Project, said:

“Due to advances in the science of adolescent development, we know more now than ever before about the unique status of our nation’s young people, particularly in relation to crime and rehabilitation. This bill rightly acknowledges the importance of second chances in its provisions regarding juveniles.”

From C.J. Ciaramella’s report for Buzzfeed on October 1:

“It looks like the reforms are going to be meaningful and certainly address some of the worst-of-the-worst mandatory minimum gun and drug sentences,” Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, told BuzzFeed News.

“It doesn’t go nearly as far as FAMM would like in that it doesn’t eliminate any mandatory minimums,” Gill said. “With that caveat, it does appear to give judges more flexibility and broaden the safety valve. The current safety valve is pretty strict, so this seems to let more people benefit, and that’s a positive thing.” […]

The question was whether Grassley would balk at the demands to cut mandatory minimums, and whether progressives would stomach any new tough-on-crime measures he demanded.

Grassley appears to have mostly stood firm. The bill would add new mandatory minimum sentences for interstate domestic abuse and providing support for terrorists, while strengthening penalties for certain other crimes.

But the other provisions reducing mandatory minimums seem to be strong enough to keep the delicate bipartisan coalition together. Democrat Sen. Patrick Leahy, the former chair of the Senate Judiciary Committee, has in the past steadfastly voted against bills that created any new mandatory minimums, but an aide said he supports the new legislation as well.

It’s unclear, however, if Congress will have the time or will to take up the bill in the final months of the year.

From Richard A. Serrano’s report for the Los Angeles Times on October 1:

One Capitol Hill source said sentencing changes may not make it out of the House until next year, if then, and then it would have to be reconciled with various Senate versions under discussion, including the latest proposal.

Several interest groups rallied around the new Senate measure.

“This bill shows that Congress has gotten on board with the president, the pope and many others in recognizing the psychological and spiritual pain inflicted by solitary confinement” and other harsh prison sentences, said the Rev. Ron Stief, executive director of the National Religious Campaign Against Torture.

Marc Mauer, executive director of the Sentencing Project, said the working proposals on Capitol Hill “will bring a greater measure of fairness and racial justice to the federal sentencing structure.”

From Shane Bauer’s October 1 post for Mother Jones, “The New Bipartisan Criminal-Justice Reform Bill Doesn’t Live Up to Its Own Hype.”

In a press conference to announce the bill, Sen. Dick Durban (D-Ill.) pointed out that the “United States incarcerates more of its citizens than any other country on earth.” Yet the 141-page Sentencing Reform and Corrections Act is remarkably unambitious in addressing that particular problem.

To begin with, the bill only affects the federal justice system. For truly national criminal-justice or prison reform, each state would have to pass its own bill. Federal inmates represent just 13 percent of our national prison population. (If you count jail populations, federal prisoners are just 9 percent of all Americans behind bars.) Even if we let all inmates out of federal lockups tomorrow, we would still have more people behind bars than any other country in the world. […]

Overall, the bill focuses on politically safe issues-long sentences for nonviolent drug offenses are now widely unpopular. But it doesn’t address the main driver of mass incarceration: sentencing for violent crimes. It’s a common myth that the war on drugs drove the fivefold increase in America’s total prison population since 1980. Nonviolent drug offenses do account for a full half of federal inmates, but in state prisons the story is much different. There, drug offenders account for just 16 percent of the prison population.

Ultimately, the only way to bring our prison population anywhere near pre-Reagan-era levels-when we had about 300,000 people behind bars-would be to make major changes in sentencing for more serious crimes. Nationally, 47 percent of prisoners are incarcerated for violent crimes and 18 percent for property offenses. If we let out everyone incarcerated for a drug offense, our total prison population would drop from 1.6 million to 1.2 million. The statistic that Durbin cited about the United States locking up more people than any other country would still be true.

October 1 press release from the Senate Judiciary Committee:

Senators Introduce Landmark Bipartisan Sentencing Reform and Corrections Act of 2015

WASHINGTON – A bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin today is introducing comprehensive legislation aimed at recalibrating prison sentences for certain drug offenders, targeting 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 re-enter society. The Sentencing Reform and Corrections Act of 2015 is also sponsored by Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), and Cory Booker (D-N.J.).

“This historic reform bill addresses legitimate over-incarceration concerns while targeting violent criminals and masterminds in the drug trade.  It’s the product of thoughtful bipartisan deliberation, and I thank my colleagues for their hard work to promote opportunities to reduce recidivism while protecting our communities from violent career criminals.  This bill is an important component in my ongoing effort as Judiciary Committee chairman to ensure access to justice for both the victims and the accused,” Grassley said.

“This compromise represents more than three years of work on criminal justice reform.  The United States incarcerates more of its citizens than any other country on earth. Mandatory minimum sentences were once seen as a strong deterrent. In reality they have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, our country must reform these outdated and ineffective laws that have cost American taxpayers billions of dollars. This bipartisan group is committed to getting this done,” Durbin said.

“This legislation is modeled after successful Texas reforms that have rehabilitated prisoners, reduced crime rates, and saved taxpayer dollars. This bipartisan package will protect law enforcement’s ability to aggressively target violent criminals and serious offenders, while focusing on justice, rehabilitation, and public safety. I look forward to working with this bipartisan coalition to move this bill through Congress and to the President’s desk,” Cornyn said.

“This bill marks an important step toward making our criminal justice system fairer by reducing overcrowded prison populations and giving prisoners the help they need to avoid committing future crimes. It also reflects a growing bipartisan recognition that we cannot incarcerate our way to safer communities, and that the current system too often pushes individuals into a cycle of recidivism that is hard to break. I thank Chairman Grassley for leading the long, thorough and collaborative process, respecting a wide range of views, that ultimately produced this bill, and I’m proud to support it,” Whitehouse said.

“Since my time as a federal prosecutor, I have been concerned that federal sentencing laws too often require punishments that just don’t fit the crime. These laws require many nonviolent offenders to spend years in prison, often with few opportunities for meaningful reform. Today’s legislation addresses both of these problems by reducing mandatory minimums and by expanding opportunities for programs that have been proven to reduce recidivism. I am grateful for the close collaboration with senators from both parties that has made this important bill a reality today,” Lee said.

“Crafting criminal justice reform in this Congress is like a Rubik’s cube, but this group of Republicans and Democrats worked hard to come up with a fair and balanced package that will make a real difference. This bill would make much needed reforms to sentencing for non-violent offenders, resulting in a much fairer criminal justice system. I’m hopeful that we can continue moving the ball forward in a bipartisan way to make the reforms our system needs,” Schumer said.

“We maintain the tools law enforcement needs to continue making sure that the worst drug traffickers and violent criminals stay off of our streets.  We also provide flexibility in sentencing for those offenders that deserve it.  I’m proud to support this important legislation,” Graham said.

“The broad bipartisan nature of this bill marks a new chapter in criminal justice reform.  Although I wish this bill did more, it will impact thousands of lives and save millions of dollars.  And, critically, its changes are not just forward looking.  By applying many of these reforms retroactively, Congress is, for the first time, acknowledging that when we pass unfair laws, we have a moral responsibility to fix our mistakes.  Real people, like Weldon Angelos, are paying with decades of their lives. We must keep pushing and see that this bill is enacted,” Leahy said.

“For decades, our broken criminal justice system has held our nation back from realizing its full potential. Today, we take a step forward. Mass incarceration has cost taxpayers billions of dollars, drained our economy, compromised public safety, hurt our children, and disproportionately affected communities of color while devaluing the very idea of justice in America. The Sentencing Reform and Corrections Act is a promising, bipartisan step forward to help right this wrong,” Booker said.

The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law.  The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.

In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.

For more information on the Sentencing Reform and Corrections Act of 2015, see the following documents:

Bill Text

One-page bill summary

Section-by-section

Speech Grassley delivered on the Senate floor, March 10, 2015:

Grassley Floor Statement: Mandatory Minimum Sentencing

Mar 10, 2015

Prepared Statement by Senator Chuck Grassley of Iowa

Chairman, Senate Judiciary Committee

Floor Remarks: Mandatory Minimum Sentencing

March 10, 2015

Mr. President, on a number of occasions I have had to take to the Senate floor to note my opposition to the so-called Smarter Sentencing Act.  It has been necessary because there are so many misconceptions about that legislation and federal drug sentences and prisoners.  

Before addressing them, I want to let my colleagues know that I do believe that there are some inequities in the criminal justice system.  The Judiciary Committee will be looking at ways to address them.  I will set out that part of the Committee’s agenda after discussing sentencing.

The Smarter Sentencing Act would arbitrarily cut in half the mandatory minimum sentences that are imposed on a host of serious drug offenses.  They include importation, manufacture, and distribution of serious drugs like heroin, PCP, LSD, and meth.

The governor of Vermont devoted an entire State of the State address to the heroin epidemic.  The governor of Maryland just launched an anti-heroin initiative following the near doubling of heroin overdose deaths in that state between 2011 and 2013.  But the Smarter Sentencing Act would cut in half mandatory sentences for importing, distributing, and manufacturing heroin.

It would cut the sentences for the same activities with respect to LSD, a drug that causes psychosis and suicide.  It would reduce sentences for the drug trade that two of President Obama’s appointees in the DEA and in the Justice Department have warned that the world’s most dangerous terrorist organizations are engaged in to fund their operations.  It would harm the ability of prosecutors to obtain cooperation from lower level offenders to obtain intelligence regarding terrorists’ planned attacks.  

As President Obama’s own United States Attorney for the Southern District of New York has warned, “[T]here is a growing nexus between drug trafficking and terrorism, a threat that increasingly poses a clear and present danger to our national security.”  The threat should determine the response.  It would be foolhardy to meet the threat of narcoterrorism by cutting drug sentences.

Under federal sentencing law, those who are low level offenders avoid mandatory minimum offenses.  Just under half of all drug courier offenders were subject to mandatory minimum sentences, but fewer than 10% received mandatory minimum sentences.  One reason for the difference is that offenders who cooperate in prosecuting high level drug conspirators avoid the mandatory minimum sentences.

As the Federal Law Enforcement Officers Association wrote, “[A]ny change in the mandatory minimum sentencing standard does a disservice to the brave men and women who are asked to put their lives on the line to protect us from terrorists and criminals.  

“Currently, the system in place allows federal law enforcement agents to infiltrate and dismantle large-scale drug trafficking organizations and to take violent armed career criminals off of the street.  In turn, this allows progression up the scale of criminal organizations from low-level subject to higher ranking members through the effect of the mandatory minimum sentencing act.”

A second reason why mandatory minimum sentences are not imposed on many eligible drug couriers is the “safety valve.”  Defendants can qualify if they have no or a very light criminal history.  That means that those who are convicted but aren’t violent do not serve mandatory minimum sentences.   The average sentence for a federal drug courier offender is only 39 months.  The offenders who qualify for the safety valve are drug couriers and drug dealers.  They are not people who are in prison for possession of drugs.  That is because drug possession does not trigger federal mandatory minimum sentences.  And it is because, according to the Sentencing Commission, almost no citizen is in federal prison for mere drug possession.  

Eighty-eight percent of drug possession prisoners were apprehended along the Southwest Border.  And the median amount of drugs in their possession was 48 pounds.  That is correct, 48 pounds.  These are not low level, casual offenders.  Only 270 mere federal drug possession cases were brought anywhere else in the country in the most recent year for which the Sentencing Commission has statistics.  And the average sentence for drug possession for citizens is 1.3 months.  

Months, not years.  

Most citizens convicted of federal drug possession charges received probation.  The proponents of the bill say that there are too many people in prison and that the bill would save taxpayers money.  This is untrue.  

The Congressional Budget Office estimated that the bill, even while releasing hundreds of thousands of prisoners earlier than under current law, would increase direct spending by about $1 billion and would reduce revenues by $42 million over ten years.  

The supporters of the so-called Smarter Sentencing Act do not even attempt to contest my points in opposition.  They do not say there is not a heroin epidemic.  They cannot say that citizens are serving federal mandatory minimum sentences for possession.  But they do say this – their major ploy is to paint a picture that poor innocent mere drug possessors are crowding our prisons.  

They do not argue that Obama Administration officials did not warn of the link of drug crimes to terrorism and national security threats.  They don’t challenge the statistics from the Sentencing Commission or the existence of the safety valve or the effect of mandatory minimum sentences in enhancing prosecution of serious drug offenders.  They won’t take on the CBO’s cost estimates.   They do cite CBO’s discretionary cost savings of $3 billion, but in the long run, entitlement spending can be more costly because entitlement spending must be paid.  They don’t do any of these because they can’t.

They are committed to the bill as a matter of ideology.  The facts simply do not matter to them.  They try change the subject.  All they can do is resort to rhetoric.  In fact, the supporters of that legislation are Orwellian in their rhetoric.

I mean that literally.  George Orwell wrote a famous essay called “Politics and the English Language.”  He said: “In our time, political speech and writing are largely the defense of the indefensible.”

The arguments for the Smarter Sentencing Act are merely a weak attempt to defend the indefensible.  What I have called the leniency industrial complex refers to the people who are sentenced to drug mandatory minimum sentences as “nonviolent.”  They use that term even though any truly nonviolent offenders would qualify for the safety valve.  They gloss over the fact that even if an offender was not violent in a particular case, he may have committed a prior violent offense that would make him in fact violent.  And, of course, many drug related crimes occur through force or the threat of force or are conducted by people in a criminal enterprise that relies on violence.  

The bill’s supporters even refer to some drug offenders as “nonviolent” who are serving mandatory minimum sentences for carrying a firearm in the commission of their crime.  Few Americans would call someone who carries a gun while committing a drug crime “nonviolent.”  

And the leniency industrial complex wants people to think that people who are sentenced to mandatory minimum sentences are “low level offenders.”  They neglect to mention that true low level offenders receive the safety valve and avoid mandatory minimum sentences and that many others avoid them by providing substantial assistance.  

Many of the cases they cite involve repeat offenders.  Repeat offenders are not low level.  

Lenient sentences did not stop them from dealing dangerous drugs and another lenient sentence won’t stop their next drug deal.  

When it comes to terms like “low level” and “non-violent,” again quoting Orwell, the bill’s supporters have their “own private definition, but allow[] the hearer to think [they] mean[] something quite different.”  

Their “political language has to consist largely of euphemism, question-begging, and sheer cloudy vagueness.”

I regret to say that elements in the media have uncritically accepted the Orwellian rhetoric surrounding this bill.  

A recent New York Times editorial swallowed the “low level” rhetoric whole.  It challenged my well-supported conclusion that high level offenders would benefit from enactment of the Smarter Sentencing Act, without even mentioning the serious crimes and drugs the bill applies to.  It editorialized that my opposition to the bill “defies … empirical data,” even though my sources are the Sentencing Commission and Obama Administration appointees.

When the Times attempted to back up its support for the bill, it linked not to any authoritative evidence, but to the report of an ideological advocacy group.  This is the so-called “empirical data” the Times finds worthy.  Why should taxpayers fund the Sentencing Commission if the self-proclaimed “paper of record” shuns its statistics in favor of those offered by lobbying groups?  

The Times said that federal policymakers should rely on state experience in reforming sentences.  So let’s do that.  Only 270 citizens are prosecuted for drug possession in the federal system each year, and most receive probation.  The states have many drug possession offenders in prison, so the actions they take for that class of offender do not bear on federal prison populations.  Nor do the states prosecute anyone for importation of heroin or LSD or meth or cocaine.  But the federal government does.  So state drug sentencing changes are not relevant to those prisoners as well.  And it is the federal government, much more than the states, that uses lower level offenders to take down the most serious drug offenders.  

Meanwhile, I have offered to consider legislation that would lower some mandatory minimum sentences if others could be imposed or raised.  For instance, the Sentencing Commission has identified child pornography and financial crimes such as insider trading as areas where federal judges are particularly lenient and where no mandatory minimum sentences exist.  But it is the proponents of Smarter Sentencing who refuse to take me up on that good faith offer.  Their ideology does not include compromise.  

The White House says they want to work with this senator on these issues, but then invites other members of Congress but not the Chairman of the Senate Judiciary Committee to a meeting to discuss the subject.  But in the New York Times’ Orwellian world, this senator is the roadblock to sentencing reform.  That is upside down and backward.

Problems do exist in the criminal justice system.  I plan to use the Judiciary Committee to address some important ones.  But rather than marking up ill-considered and dangerous legislation like the so-called Smarter Sentencing Act, we will take up bills that can achieve a large measure of consensus.  

I would like to take this opportunity to address some of the Committee’s criminal justice agenda, which will show my commitment to real problem solving through consensus.

The first area we will address is reform of asset forfeiture. Asset forfeiture can serve a valuable purpose for law enforcement and society by helping to deprive criminals and criminal organizations of their money; money from the proceeds of their crimes or the instrumentalities of their crime.  It also helps to compensate victims who are injured or suffer as a result of criminals’ wrongdoing.  It can also return that money to law enforcement, who can use it continue to combat serious crime and put more bad guys behind bars.  But current law provides perverse incentives that have led to abuses.  

Law enforcement can sometimes directly benefit from property that they seize, sometimes contrary to state law.  Those whose property is taken often do not have access to fair procedures or lawyers to help them get that property back.  These processes and procedures need real structural reform.  Innocent property owners must be able to challenge seizures and protect their property from government abuses.

I am also looking into reversing a Supreme Court decision that denies property owners the opportunity to use their own money to hire a lawyer to help defend them against the government.  Even though the Administration has made some administrative changes to these practices and policies in response to widespread criticism, I believe real legislative reform is needed.  I look forward to working with my colleagues in a bipartisan way to make the necessary reforms.

Second, I am very concerned that for too many times in America, equality under the law is not a reality.  We are committed to equal justice under law.  But the poor do not receive the same justice in many instances.  

For more than 50 years, the Supreme Court has ruled that indigent people accused of felonies must be afforded counsel.  And for more than 40 years, starting with a decision called Argersinger v. Hamlin, the Supreme Court has found that the Sixth Amendment of the Constitution requires that federal, state, and local governments provide counsel to indigents who are accused of misdemeanors if their conviction could potentially lead to imprisonment.

I regret to say that although I am aware of instances where the federal government is responsible, it is particularly at the state level where the Sixth Amendment is violated numerous times on a daily basis.  I cannot think of any Supreme Court decision that has ever faced such resistance in magnitude and time as Argersinger v. Hamlin.  Indigent misdemeanants are being pressured to waive counsel.  Sometimes they are threatened with imprisonment if they seek to have counsel appointed.  There are other ways that the decision is violated.  

Then there is the question of the competence of the counsel appointed, given how many cases are assigned to an individual lawyer and how quickly judges resolve them.  I fear that some innocent people are being sentenced to prison.  

And there are other consequences as well.  We should make sure that there are collateral consequences imposed on people who are guilty of domestic violence misdemeanors, for instance.  But we do not want collateral consequences imposed on people who did not actually commit misdemeanors.  If people later get in trouble with the law, we don’t want them not to qualify for the “safety valve” because some of their previous convictions were for misdemeanors in which they did not receive the right to counsel.  

We don’t want people to have criminal records when they seek employment when they did not receive counsel who could have prevented a conviction.  In some situations, a misdemeanor will automatically become a felony if the accused has committed it repeatedly.  We don’t want a misdemeanor conviction to render a later crime a felony if questions of innocence surround the earlier crime.    

Third, I want to address databases of criminal records.  Those databases can serve useful purposes, such as enabling background checks on people who are being considered for a job or for volunteering to work with children.  And there are proposals to expand the purposes for which the databases can be used.  But I am concerned about the quality and completeness of the records in the database.  

If the database contains erroneous or outdated records, then the people being checked may unfairly lose out on jobs or the ability to help children. There are procedures at the federal level to challenge the information in the database if the person knows that their records are inaccurate.  But it is a steep climb.  And states have their own procedures for people to challenge the accuracy of criminal records.  But success there may be even harder, and may cost more than people can afford.  

Records are also sometimes not expunged even when the law says they should be.  I do not want to see an arrest record turn up in a background check and deny someone the ability to work, deny the economy the benefit of that work, and deprive the government of tax revenue from that work, because a background check turned up a record of an arrest from long ago that never resulted in a conviction.  This is a widespread problem.  

According to press reports, when arrests are included, 32% of adults in this country have criminal records that are contained in databases.  I am sure we can reach bipartisan agreement on legislation to address this problem in some form.

Mr. President, there are dangerous and poorly considered proposals to change the criminal justice system that are divisive, are not based on reality, and will never become law.  There are also problems in the criminal justice system that are clear, widely recognized, have serious consequences, and can be the subject of effective bipartisan legislative efforts.  I will do what I can to make sure the Senate Judiciary Committee devotes its energies to the second category.

Christopher Ingraham analyzed the “Orwellian deception” of that speech in the Washington Post’s Wonkblog on March 12. Excerpts:

Grassley accused the bill’s bipartisan supporters, including fellow Republicans Ted Cruz, Mike Lee and Rand Paul, of being part of a so-called “leniency industrial complex,” a rather colorful turn of phrase. In the past, he’s defined this as “some people in Congress, the public, academia, and the media, who think that sentences that are being imposed on serious criminal offenders are too stringent.” Notice, though, the complete lack of “industry” in Grassley’s “industrial complex.” […]

The problem is that Grassley believes, contrary to a mountain of evidence, that mandatory minimum sentences are effective tools for combating these problems. For instance, a recent report from the Brennan Center for Justice found that increased incarceration has had no effect on crime rates since 2000, and little effect before that. A report from the Sentencing Project last year found little evidence of a connection between prison rates and crime rates. Perhaps the most damning case against mandatory minimum drug sentences is that since they were instituted in the 80s and 90s, the use of illicit drugs has risen and their price has fallen dramatically.

Grassley also makes the gobsmacking claim that the Smarter Sentencing Act would increase government spending by $1 billion over the next 10 years. His source for this number is the CBO report on the bill which finds that, yes, prisoners released under the proposal would start claiming some federal benefits earlier than they would otherwise, to the tune of about $1 billion dollars. But he neglects to mention that this spending would be accompanied by a $4 billion decrease in spending at the Department of Justice over the same period, for an overall net savings of $3 billion.

  • It's a start....

    We have to remember that this is only the Federal system.  It cannot and does not do anything to reform State sentencing schemes.  If it leads to changes in the States by example, great, if not then its impact will be minimal.  According to the Bureau of Justice Statistics, there were 210,567  (roughly the population of Linn County) inmates held in Federal prison.  In contrast, there were 1,350,958 (roughly the population of New Hampshire) persons incarcerated in State prisons for the same year.  

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