WASHINGTON – U.S. Senator Mike Lee (R-UT) today introduced two pieces of bipartisan legislation with Senator Dick Durbin (D-IL) to protect Americans’ constitutional right against unjust imprisonment and cut government waste to help law enforcement focus resources on the most dangerous criminals. Details on the Smarter Sentencing Act and the Smarter Pretrial Detention for Drug Charges Act are outlined below.

“These bills protect the Fifth Amendment right of all Americans against unjust imprisonment and keep tax dollars where they’re most efficient,” said Senator Mike Lee. “Judges need more discretion to consider each defendant’s individual and unique circumstances, and our prisons need to be able to focus resources on the most dangerous criminals. Our bipartisan legislation will protect Americans’ constitutional rights and eliminate federal waste.”

“Outdated policies stemming from the failed ‘War on Drugs’ continue to impose lengthy, one-size-fits-all sentences for many nonviolent drug offenses. It’s costly, overcrowds our prisons, and strains budgets at the expense of other important law enforcement and crime prevention programs,” said Senator Dick Durbin. “Our bipartisan bills will modernize these misguided and expensive sentencing laws and allow many nonviolent drug offenders to return to their communities more quickly, without threatening public safety. I thank my colleague Senator Lee for his longtime partnership in this effort.”

The Smarter Sentencing Act

Over half of federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill provides federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.

The bill does not repeal any mandatory minimum sentence, nor does it lower any maximum sentence. Rather, its approach allows judges to dole out the harshest penalties where they are warranted, while allowing judges to moderate sentences based on individual circumstances. Additionally, this bill only applies to nonviolent offenses.

Senators Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Since then, several important reforms first proposed in the bill were included in the landmark First Step Act, enacted into law in 2018. The central remaining sentencing reform is reducing mandatory minimum penalties for certain nonviolent drug offenses.

The bill is cosponsored by Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Tim Kaine (D-VA), Angus King (I-ME), Ed Markey (D-MA), Bernie Sanders (I-VT), Brian Schatz (D-HI), Elizabeth Warren (D-MA), and Roger Wicker (R-MS).
The following organizations support the Smarter Sentencing Act: National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, Association of Prosecuting Attorneys.

Bill text is available here.

The Smarter Pretrial Detention for Drug Charges Act

Senators Lee and Durbin introduced this bill as pretrial detention rates in the federal system are increasing across all demographic groups. By eliminating the blanket presumption of pretrial detention for most federal drug charges, a tailored, individualized assessment can be conducted for each defendant on a case-by-case basis.

Under the Bail Reform Act of 1984, which governs federal pretrial detention, the release of defendants is generally presumed unless a judge finds a risk of flight or potential danger to the community. This is the appropriate standard for defendants due to the presumption of innocence.

However, this release presumption is reversed for certain criminal charges, creating a presumption of detention without regard to the circumstances and background of the accused. One example of these “presumption” charges is any drug offense that is punishable by 10 years’ imprisonment or more (the vast majority of federal drug offenses). This presumption, a relic of an antiquated and failed approach to combatting the last drug epidemic, treats nonviolent drug offenses like terrorism, hijacking, and other serious violent crimes. According to the Probation and Pretrial Services Office of the Administrative Office of the U.S. Courts, this presumption has “become an almost de facto detention order for almost half of all federal cases.”

A 2017 Probation and Pretrial Services Office study found that this presumption does not correctly identify which defendants are higher risk. For example, it found no significant difference in rates of failures to appear between presumption and non-presumption cases, and presumption cases had fewer violent rearrests than non-presumption cases. The study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.”

The bill is cosponsored by Senator Chris Coons (D-DE) and Roger Wicker (R-MS).

The following organizations support the Smarter Pretrial Detention for Drug Charges Act: National Association of Criminal Defense Lawyers, Due Process Institute, Tzedek Association, Drug Policy Alliance, American Civil Liberties Union, Families Against Mandatory Minimums, Dream.org, Right on Crime, Black Public Defender Association.

Bill text is available here.

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