Senator Lee:  Mr./Mme. President, I ask unanimous consent to enter into a colloquy with the senior Senator from Illinois and the junior Senator from New Jersey. 

We rise today to speak about the Smarter Sentencing Act, a bipartisan piece of legislation that would make targeted reforms to mandatory minimum sentences for nonviolent drug offenses. 

I was proud to join Senator Durbin in introducing this legislation and I want to thank our Senate cosponsors:  Senators Jeff Flake, Cory Booker, Ted Cruz, Patrick Leahy, Rand Paul, Sheldon Whitehouse, Johnny Isakson, and Chris Coons.  I also want to thank the lead sponsors of the House version of the Smarter Sentencing Act, Congressmen Raul Labrador and Bobby Scott. 

It is not often that you see a political coalition like this on Capitol Hill.  It reflects the importance of an issue whose time has come:  reforming our federal sentencing laws. 

We have come to the floor today to explain what the Smarter Sentencing Act does, and to address some misconceptions about our bill that have been expressed on the Senate floor.

I want to ask Senator Durbin, what problems does the Smarter Sentencing Act seek to address?

Senator Durbin:  I want to thank Senator Lee for his leadership on this important issue, and I thank him for the question.

Our criminal justice system is in crisis.  The United States of America holds more prisoners, by far, than any other country in the world.  The federal prison population has grown by 750% since 1980, and our federal prisons are approximately 30% over capacity. 

Over the past 30 years, spending on federal incarceration has increased more than 1100 percent.  Our exploding prison population now eats up a quarter of the Justice Department’s discretionary budget.

These runaway expenditures are undermining other law enforcement efforts.  U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions, and resources for state and local law enforcement have decreased dramatically.

The biggest drivers of growth in the federal prison population are drug sentences, with almost 50,000 more drug offenders in federal prisons now than 20 years ago.

This problem is made even worse by mandatory minimum sentences, which have grown by 155% over the last 15 years.  One third of all federal prisoners are now subject to mandatory minimums, and 50% of them are drug offenders.

These mandatory penalties don’t allow our courts to distinguish between the big-time, career offenders—who should be our focus—and lower-level offenders. This isn’t fair, it isn’t smart, and it isn’t an effective way to hold offenders accountable and protect public safety.

I now want to recognize my colleague, the Senator from New Jersey, and thank him for devoting so much time and energy to shining a spotlight on this important issue of criminal justice reform.

Senator Booker:  Thank you Senator Lee and Senator Durbin, I’m pleased to be able to join you on the floor for this important conversation.

New research shows that there are two big problems with these mandatory minimum sentences:  One, they are not needed to ensure public safety, and two, they are having a very negative impact on disadvantaged communities.

Last year, the National Research Council of the National Academies issued a major study of incarceration in the United States.  One of their main conclusions is that mandatory sentencing and excessively long sentences generally do not have a significant deterrent effect and are ineffective unless targeted at offenders with a very high rate of recidivism or extremely dangerous offenders. 

The National Research Council concluded, and I quote:  “[We] have reviewed the research literature on the deterrent effect of such laws and have concluded that the evidence is insufficient to justify the conclusion that these harsher punishments yield measurable public safety benefits.”

And recent data from the U.S. Sentencing Commission, an independent and bipartisan federal agency, shows that shorter sentences can accomplish the same goals without compromising public safety.

Our communities have paid a high cost for the stiff sentences mandatory minimums require.  The National Research Council found that high incarceration rates are concentrated in poor, minority neighborhoods, and that the incarceration of significant numbers of residents in these neighborhoods compounded existing social and economic problems like unemployment, poverty, family disruption, poor health and drug addiction.

The application of these mandatory minimum sentences, especially in drug cases, feeds the perception of pervasive unfairness in our criminal justice system.  This perception is based in reality.  Data from the U.S. Sentencing Commission shows that mandatory minimums have a disparate impact on minority communities.

The majority of illegal drug users and dealers in our country are white, but three quarters of all people incarcerated for drug offenses are African American or Latino.  And the large majority of individuals subject to federal mandatory minimum penalties are African-American and Hispanic. 

African-Americans are granted relief from mandatory minimum penalties under the so-called “safety valve” far less often than other groups.  For example, in 2010, 63.7% of white offenders received “safety-valve” relief, while only 39.4% of black offenders received this benefit.  In 2012, African-Americans were 26.3% of all drug offenders, but they were 35.2% of drug offenders who received no “safety valve” relief from mandatory minimums.

And now I want to ask Senator Lee, the lead sponsor of the Smarter Sentencing Act, what does this legislation do to address excessive mandatory minimums?

Senator Lee:  I thank the Senator from New Jersey for the question.

First, the Smarter Sentencing Act would reduce federal mandatory minimum penalties for drug offenses in a very targeted way.  Our bill would allow federal judges to determine, on a case-by-case basis, when the harshest penalties should apply. We do not repeal any mandatory minimum sentences, and we do not lower any maximum sentences. This approach maintains a floor, below which no offenders can be sentenced, but it gives judges the discretion to determine when the harshest penalties should apply. 

These changes in mandatory minimum sentences do not apply to violent offenses, and they do not apply to offenders who import drugs into the United States, unless the offender’s role is limited solely to transporting or storing drugs or money.

Second, the Smarter Sentencing Act would modestly expand the federal “safety valve,” which allows federal judges to sentence a limited number of nonviolent drug offenders below the mandatory minimum sentence.  Our bill would expand the safety valve to non-violent offenders with only a minor criminal history.  Individuals who use weapons or play a leadership role in the offense would be ineligible.

Let me ask Senator Durbin to explain other important provisions of our bill.

Senator Durbin:  Thank you Senator Lee. 

In 2010, I joined with Senator Jeff Sessions in sponsoring the bipartisan Fair Sentencing Act.  This bill unanimously passed the Senate and the House before it was signed into law. The Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine offenses.

Under the law at the time, it took 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum sentences.  For example, possessing 5 grams of crack carried the same 5-year mandatory minimum sentence as selling 500 grams of powder cocaine.  This was known as the 100:1 crack-powder sentencing disparity. 

The crack-powder disparity disproportionately affected African Americans, who made up more than 80% of those convicted of federal crack offenses.  At a hearing I held in 2009, former Bush Administration DEA head Asa Hutchinson testified that, “Under the current disparity, the credibility of our entire drug enforcement system is weakened.”

The Smarter Sentencing Act would allow some inmates who were sentenced before the Fair Sentencing Act to petition for the sentence reductions that this law put in place in 2010. This provision would not automatically reduce a single sentence, but it would allow federal judges and prosecutors to conduct an individualized review of eligible cases.

Responding to our decreased reliance on prisons, the Smarter Sentencing Act would direct the Justice Department to report to Congress on how the cost savings from our bill are being used to reduce crime and prevent recidivism.

And now let’s respond to some misstatements about the Smarter Sentencing Act.  One of our colleagues said, quote, “we are not sending huge numbers of nonviolent drug offenders to federal prison under lengthy mandatory minimum sentences.”  Senator Booker, how do you respond?

Senator Booker:  Let’s look at facts. In 2011, the Sentencing Commission issued a comprehensive study on mandatory minimum sentences.  This study found that almost 55,000 people were in federal prison serving a mandatory minimum sentence for a drug crime.  That was more than 50% of all federal drug offenders and more than one quarter of all federal prisoners.

Second, the great majority of federal drug offenders do not use violence.  The Sentencing Commission’s most recent statistics show that less than 1% of drug offenders used or threatened violence in committing their crime, and that no weapons were involved in more than 80% of drug cases.

Third, many of those serving mandatory minimum drug sentences are low-level offenders. It is true that certain low-level offenders, like couriers, don’t often receive mandatory minimums, but other low-level offenders frequently are sentenced to mandatory minimums.  For example, among those who are most likely to receive a mandatory minimum sentence are street-level dealers – those who sell less than one ounce of a drug.  Almost 45% of street-level dealers are serving mandatory minimums in federal prison. 

Finally, these mandatory minimum sentences are lengthy.  A recent Sentencing Commission study showed that the average sentence for a mandatory minimum was 132 months – 11 years in federal prison without parole.

Senator Lee, some claim that mandatory minimum prison sentences are not a major factor in the increase in the federal prison population and overcrowding in federal prisons.  Is that true?

Senator Lee:  That is inaccurate.  In its 2011 report, the Sentencing Commission concluded that mandatory minimums have had, quote, “a significant impact on the federal prison population.” 

From 1995-2010, the number of federal prisoners serving a mandatory minimum sentence grew from 29,603 to 75,579. That is a 155.3% increase and over 1/3 of all federal prisoners.

As of December 2014, 59.4% of the 210,567 federal inmates – 125,077 inmates – had been convicted of an offense carrying a mandatory minimum.  Of these, 73.4% – which is 91,806 inmates – were required to serve that mandatory minimum sentence or more. 

In 2013, 62.1% of all drug offenders were convicted of an offense carrying a mandatory minimum.  Over 60% of them received no safety valve relief, and 70% of them did not receive relief for cooperating with authorities.

Some have argued that those serving sentences for nonviolent drug offenses have long and violent criminal histories.  But Sentencing Commission data show that is inaccurate.  In 2013, 49.6% of drug offenders had little or no criminal history. And only 7% of drug offenders were sentenced under the “career offender” sentencing guideline, which requires two prior convictions for a drug offense or a crime of violence.

But here is the important point – the Smarter Sentencing Act reduces certain mandatory minimum sentences for nonviolent drug offenses.  But we do not lower the maximum sentence.  That means a judge can sentence offenders all the way up to the statutory maximum if he or she determines that is appropriate.

Senator Durbin, some have raised concerns about how reducing mandatory minimum sentences will impact serious problems like the heroin epidemic and narcoterrorism.  Can you address that?

Senator Durbin:  Let’s be clear.  The Smarter Sentencing Act only reduces certain mandatory minimum sentences for nonviolent drug offenses. 

There is a separate mandatory minimum of 20 years that applies when the drugs have resulted in death or serious bodily injury.  Any dealer who sells drugs that kill or hurt someone, like with accidental overdoses, will be subject to the same mandatory minimum of 20 years.  Our bill doesn’t touch that provision of the law.    

As for narco-terrorism, a special federal sentencing guideline applies.  The truth is that these are very rare offenses – between 2008 and 2012, only 3 cases out of almost 200,000 were sentenced under that guideline.  But the Smarter Sentencing Act does not change the sentencing guideline enhancement for narcoterrorism, or any of the enhancements for terrorism. 

In fact, our bill directs the Sentencing Commission to ensure that severe sentences for “violent, repeat, and serious drug traffickers who present public safety risks remain in place.” Also, there will continue to be dozens of statutory penalties and sentence enhancements in the sentencing guidelines allowing judges to impose heightened sentences for violent and repeat offenders.

The Smarter Sentencing Act doesn’t automatically reduce a single sentence, and it doesn’t eliminate any mandatory minimums or reduce any maximum sentences.  Our bill simply restores the traditional authority of a federal judge to impose a sentence that fits the crime and the criminal, based on the circumstances of that case, while maintaining a floor below which no one can be sentenced.

Senator Booker, can you discuss the impact that the Smarter Sentencing Act will have on communities that have been most negatively impacted by the crisis in our criminal justice system?

Senator Booker:  The Smarter Sentencing Act is one step in the effort to restore faith in our criminal justice system.  Families of nonviolent drug offenders will not be separated for years on end.  Communities with high incarceration rates will work to reintegrate ex-offenders and help them to become productive members of society.  They will see what the studies have already told us – that prison is not the answer to all of society’s problems.  Savings from this legislation can be redirected to community efforts to prevent crime and give ex-offenders a second chance.  We can save money and still protect public safety with lower rates of incarceration and greater reliance on community supervision and treatment.  This is a path pioneered by states like Texas, Georgia, and Massachusetts.

Senator Flake, you have encouraged us to pay attention to overcriminalization in the federal system. How does the Smarter Sentencing Act address that problem?

Senator Flake:

The Smarter Sentencing Act includes an important provision to address overcriminalization. This section requires the Attorney General and the heads of certain federal agencies each to submit a public report that identifies all criminal offenses established by statute or regulation that each agency enforces.  These reports must provide information on the elements of each offense, the potential penalty and required intent for each offense, and the number of prosecutions for each offense for the last fifteen years.  This section also requires the Attorney General and relevant agency heads to establish a publicly accessible index of these offenses.  This provision is an important step towards fully understanding the scope of the overcriminalization problem.

Now, some have argued that long mandatory prison sentences encourage defendants to plead guilty and cooperate with prosecutors.  They claim that by reducing mandatory minimum sentences, our bill will reduce the incentive for defendants to plead guilty and cooperate.  Senator Lee, how do you respond to that claim?

Senator Lee: Sentencing Commission data show that the longer the mandatory minimum sentence is, the more likely a defendant is not to plead guilty and cooperate and instead to insist on a trial.

Sentencing Commission data also show that rates of cooperation for crimes that have no mandatory minimum sentences are the same and even higher than for drug crimes that do have rigid mandatory minimums. 

The reality is that defendants are most likely to cooperate when they have information to give.  That’s why high-level drug offenders receive relief from mandatory minimum sentences at much higher rates than low-level offenders.  Defendants who organize or manage a drug trafficking enterprise have the most information with which to bargain.  Low-level offenders, who have less responsibility and knowledge, often do not have much information to offer, no matter how long a mandatory minimum sentence they face.

Judge William W. Wilkins was appointed to the federal bench by President Ronald Reagan and served as the first Chair of the U.S. Sentencing Commission.  Listen to what he said:

“There are few federal judges engaged in criminal sentencing who have not had the disheartening experience of seeing major players in crimes before them immunize themselves from the mandatory minimum sentences by blowing the whistle on their minions, while the low-level offenders find themselves sentenced to the mandatory minimum prison term so skillfully avoided by the kingpins.”

Some claim that the Smarter Sentencing Act will add up to one billion dollars in federal spending.  Senator Flake, is that true?

Senator Flake:  That is creative accounting, to put it mildly.  Here is the reality.  The Congressional Budget Office analyzed the impact of passing the Smarter Sentencing Act.  It’s true that that there would be costs incurred, mainly from benefits paid out to people who would not be in prison for so long.  But the CBO estimated that – in the first ten years alone – our bill would save approximately $4 billion, for a net savings of about $3 billion.  Those savings can be redirected to efforts to reduce and prevent crime in the first place.

These savings are one reason that the Smarter Sentencing Act has received strong support from across the political spectrum.  Senator Booker, can you discuss the support for our bill?

Senator Booker:  The bipartisan U.S. Sentencing Commission and the Judicial Conference have both urged Congress to reduce mandatory minimum penalties, and both have stated their support for the reforms in the Smarter Sentencing Act.

It is supported by faith leaders, like the Justice Fellowship and the United States Conference of Catholic Bishops.

It is supported by advocacy groups across the political spectrum and has been endorsed by conservative leaders such as Grover Norquist and Americans for Tax Reform, Eli Lehrer and R Street Institute, Pat Nolan, Former President of Justice Fellowship, Marc Levin of the Texas Public Policy Institute, and Freedom Works.

It is supported by law enforcement leaders, including the Major Cities Chiefs Association and the Association of Prosecuting Attorneys, which represents many of the largest district attorney’s offices in the country, and federal, state, and local prosecutors at all levels.

The bill is supported by the Council of Prison Locals, which represents the more than 28,000 correctional workers in the Federal Bureau of Prisons.

The bill is also supported by crime victims, including the National Task Force to End Sexual and Domestic Violence, a coalition of more than a thousand organizations that advocate on behalf of victims of domestic violence, dating violence, sexual assault, and stalking. As they explain, mandatory minimum drug sentences are draining resources needed for victims. And women who are victims of domestic violence sometimes end up serving the long sentences Congress intended for kingpins and drug organization leaders.

Senator Lee, is there anything else you would like to say about the Smarter Sentencing Act?

Senator Lee: Thanks to my colleagues for your support of this important legislation. The Smarter Sentencing Act truly is a bipartisan, bicameral effort that brings support from across the political spectrum. Excessive mandatory minimums do not make us safer. The last thirty years have shown us that they are applied unevenly, and they leave a gaping hole in the communities they impact most heavily. Now we as a society have to pick up the tab. We must decide if we will continue to pay the high fiscal and social costs that mandatory minimums impose. Or if we would rather try something smarter. The Smarter Sentencing Act gives us an opportunity to rely less on prison and do more with scarce resources. Instead of just paying for prisons, it allows us to work smarter for justice. I hope all my colleagues will join us in supporting the Smarter Sentencing Act.