Sentencing Reform and Corrections Act Continues Conservative Efforts on Justice Reform

In October, a bipartisan group of senators, led by Judiciary Committee Chairman Chuck Grassley (R-Iowa), introduced the Sentencing Reform and Corrections Act, S. 2123. This historic bill was the product of months of negotiations between some of the most conservative and progressive members of the upper chamber. Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.), for example, played key roles in the negotiations and were on hand when the bill was formally rolled out. FreedomWorks released a letter of support for the bill shortly after it was marked up in committee.

Conservative activists may be surprised to know that the justice reform movement has it roots in conservative states. Texas, for example, became the first state to pass comprehensive justice reforms. Lawmakers faced $523 million in immediate prison construction costs and another $2 billion in projected costs by 2012. The costs were a result of past policy that led to a soaring prison population in the Lone Star State. Though more people were in prison, recidivism remained unacceptably high.

Rather than spend more taxpayer money to build prisons, lawmakers decided that a better approach would be to address the causes of crime, such as drug addiction and mental illness. With an initial appropriation of $241 million, a little more than half the cost of the immediate prison costs, Texas passed the first in a long line of justice reforms. Drug courts were created to divert low-level, nonviolent offenders away from prison and into treatment programs and, for those who enter the prison system, rehabilitative programs were implemented to reduce recidivism.

The "Texas model," as it has come to be known, was overwhelmingly successful. Recidivism declined, crime rates continued a downward path, and taxpayers saved $3 billion. In fact, the crime rate in Texas is at its lowest point since 1968. The reforms in Texas were so successful that other states — including Georgia, Mississippi, and South Carolina — passed their own justice reinvestment initiatives. To date, more than 30 states have acted on justice reform, including Oklahoma, where Gov. Mary Fallin, a Republican, signed sentencing reforms into law on Wednesday.

Unfortunately, Congress has fallen far behind conservative states on many policy areas, including justice reform. The federal prison system grew from some 25,000 prisoners in 1980 to more than 219,000 in 2013. The Federal Bureau of Prisons’ budget has grown from $970 million in 1980, adjusted for inflation, to $6.7 billion. the federal prison system lacks many of the substantive rehabilitative programs that states have implemented. Those who leave federal prisons reenter society without any real opportunities. Often, they turn back to a life that continues a cycle of poverty and crime in many of our nation’s communities. It is a problem that conservatives can and should address.

Today, Grassley, Lee, and other Senate supporters of the Sentencing Reform and Corrections Act rolled out tweaks to four provisions. The changes are meant to address some baseless but noisy concerns with the original language of the bill, which, among other provisions, included language that would have clarified and reduced mandatory minimum sentences under the Armed Career Criminal Act and 18 U.S.C. ยง 924(c), as well as applied the changes retroactively, though not automatically. FreedomWorks and Families Against Mandatory Minimums made the case for these reforms in a recent issue brief. ACCA and 924(c) would have also been strengthened to apply to those convicted of a "serious violent felony," under the former, and those who were previously convicted of a firearm-related crime under state statute.

The section of the Sentencing Reform and Corrections Act related to ACCA, a law that was harshly criticized by Justice Antonin Scalia, has been removed in its entirety. The section related to 924(c) has been changed significantly. This particular law is meant to deal with repeat violent offenders but has been interpreted broadly by federal courts and applied to some offenders who were not recidivists and were not violent offenders. Weldon Angelos is an example of a first-time offender who received a 55-year prison sentence because of a misapplication of 924(c) when he should have received a substantially lesser, though still strong, sentence. The new version of the bill eliminates the reduction the proposed mandatory minimum sentence reduction under 924(c) and preserves the 25-year mandatory minimum sentence for offenders prior firearm-related convictions. It also eliminates the language that would have applied prior state firearm-related convictions.

The bill does, however, broadens the existing federal "safety valve" exception to mandatory minimum sentences — a policy that has been adopted by several states, as recently noted in a report by Greg Newburn from Families Against Mandatory Minimums — for first-time, nonviolent offenders and those will little criminal history. Offenders will misdemeanors and prior minor offenses would be eligible for the safety valve. A second safety valve would be added for low-level, nonviolent offenders who are facing a 10-year mandatory minimum sentence.

In addition to new mandatory minimum sentences for interstate domestic violence and illegal exportation of weapons, a third mandatory minimum would be added for offenses involving fentanyl, an addictive and powerful narcotic used to treat pain. Like many prescription drugs, fentanyl can be purchased illegally and is used in the illicit drug trade to cut heroin.

Retroactivity of the Fair Sentencing Act of 2010, which reduced the outrageous sentencing disparity between powered cocaine and crack cocaine, and the requirement for the attorney general to produce a full accounting of and report on all federal criminal offenses remain in the Sentencing Reform and Corrections Act. The corrections reforms included in the bill, which were so key in reducing recidivism in the states, are untouched.

The Sentencing Reform and Corrections Act is a good start toward addressing the issues in the federal prison system. Hopefully, Senate Republicans will not fall for the fear-mongering and misinformation about this issue. Whether it is this bill or the proposals in the House of Representatives, Congress should follow the lead of the conservative states and pass justice reform this year.