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Sentencing Reform: Revisions Haven’t Fixed The Fatally Flawed Bill

Senators pushing hard to get criminal justice reform passed and onto the President’s desk, aware of the major criticism aimed at them from law enforcement groups, opposition from other Senators, and a host of constituents, have introduced a series of revisions to try to make the bill more palatable to critics. 

Certainly one of the reason the sponsors are restructuring the bill, which they previously advertised as applying only to nonviolent criminals, is because Senators running for re-election are terrified that releasing more violent criminals may harm their chances to return to Washington.

The revisions may fix some of the worse aspects of the legislation, but they are far from adequate. 

The bill is still fatally flawed.

It is unclear how many serious repeat offenders would be released as a result, but certainly some would be.  When the country is experiencing its worst drug epidemic in history – 1.5 times as many people died of drug overdoses last year as in auto accidents – it  is not a good time to let multiple offenders out of prison.  Drug use is dependent on supply.  Convicted drug traffickers have a 75 percent chance of getting arrested again, after being released, for trafficking.  Result: More illegal drugs, more overdoses, more deaths.

So what is wrong with the revised bill?  It still shortens mandatory minimum sentences for repeat drug traffickers, including those who carried a firearm while committing their crimes.

Although new language in section 102 prohibits reduction of a prison term for defendants convicted of “any serious violent felony,” the language is so vague that it would not only lead to endless litigation by felons trying to get their sentences reduced, but would still make many potential violent offenders eligible for early release.  For one thing, federal courts often rubber stamp motions for early release pursuant to Sentencing Commission guidelines – since last November, close to 30,000 offenders have been released.  Further, what a criminal is “convicted” of is not necessarily the same as the crime committed, given the high number of plea bargains in federal court, usually giving the offender conviction for a lesser crime.

The revised bill adds a provision in section 102 to shorten mandatory minimums for drug traffickers who smuggle drugs into the U.S. by boat or submarine (and dubbed the “Scarface” provision by critics).   Interestingly, more drugs come into the country by sea than any other way except perhaps the Mexican border, and the offenders are rarely U.S. citizens.  Just last month, U.S. Customs officials seized a submarine carrying 5.5 tons of cocaine, worth nearly $2 million on the street.

One good provision in the old bill, in section 104, removed completely in the revisions, allowed prosecutors to charge offenders with mandatory minimum federal sentences for firearms offenses when they had been convicted of prior firearms offenses by a state. 

No more.

Perhaps the worst aspects of these revisions expand the section 103 “safety valve” in current law to major drug traffickers.  The safety valve permits certain classes of drug offenders, mostly those charged with minor crimes, to be eligible to avoid mandatory minimum sentences, even when they choose not to cooperate with prosecutors.  The result, under current law, is that violent offenders and those in leadership roles can only benefit from the safety valve if they do cooperate with prosecutors.  Under the revisions, more criminals who have committed serious crimes are eligible for the safety valve provision, even when they do not cooperate.

Despite calls from critics to include it, there is still no mention of mens rea – a guilty mind, or criminal intent — as a requirement for conviction of a federal crime.  And over-criminalization — all those offenses Congress has turned into criminal offenses in recent years – isn’t even mentioned.

They say you cannot make a silk purse out of a sow’s ear.  The same goes for ill-advised legislation.

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