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Public Statements

Smarter Sentencing Act

Floor Speech

Location: Washington, DC

Mr. DURBIN. Madam President, yesterday, I introduced the Smarter Sentencing Act, bipartisan legislation that would reform our drug sentencing laws to make Federal sentencing policy smarter, fairer, and more fiscally responsible.

This bill, which is cosponsored by Republican Senator Mike Lee and Judiciary Committee chairman Patrick Leahy, would reduce certain mandatory minimum sentences for nonviolent drug offenses and give Federal judges more ability to impose individualized sentences for certain offenders. These modest changes will allow Federal law enforcement to focus limited government resources on the most serious offenders and public safety risks.

Why is this legislation needed? Let's look at where we are as a country. We incarcerate more individuals, including per capita, than any other nation in the world. Our rivals, with far lower incarceration rates, include countries like Rwanda, Cuba, China, and the Russian Federation.

And our incarceration rates are only growing over time. We have 500 percent more inmates in our Federal prisons than we did 30 years ago. For example, in 1980 we had fewer than 25,000 in Federal custody, and today there are more than 219,000.

Our Federal prison system is at nearly 40 percent over capacity--with more than 50 percent overcrowding at high-security facilities. As the Government Accountability Office has explained, this overcrowding is not only creating financial strain, but it is jeopardizing the safety of both inmates and prison guards.

And who are we incarcerating with our limited resources? Nearly 50 percent of Federal inmates are serving sentences for drug offenses.

Let's be clear: The price tag for this system is unsustainably high in terms of both financial and human costs. What we spend on Federal incarceration has increased more than 1100 percent in the last 30 years. The number was less than $330 million in 1980 and had skyrocketed to more than $6.6 billion by last year.

Our current incarceration policies are swallowing our limited law enforcement budget and forcing choices that many lawmakers and taxpayers would not agree with. Incarceration and detention costs account for nearly a third of the Department of Justice's discretionary budget. This threatens funding for Federal prosecutions, Federal law enforcement, funding and grant money for State and local law enforcement, and support for treatment, intervention, and reentry programs.

In the era of sequestration, we are faced with a choice: We can either change our sentencing policies or potentially suffer an erosion in public safety. We need to take steps to control Federal prison spending now or we will face significant cuts in the resources available for other pressing criminal justice priorities like making sure there are police on the streets, crime prevention programs in place, and an ability for offenders to reintegrate into their communities rather than become safety risks.

Many States across the country recognize that we are at a crossroads and they are pursuing important reforms with a high degree of success. A New York Times article published this week explains the ``new approach to crime'' many States are taking and the resulting decline in State prison populations. The Federal Government should follow suit.

And let's never forget the human costs. We hear every day about heartbreaking cases of mothers, fathers, uncles, aunts, and children who are behind bars for far too long sometimes decades--for nonviolent offenses. This harms communities and families.

One such case is a woman I came to know well, Eugenia Jennings. Because of unjust sentencing laws, she was incarcerated in Federal prison at the age of 23 for more than two decades for a nonviolent drug offense involving the exchange of a small amount of drugs for clothing. Eugenia had three children who were forced to grow up without their mother.

Even the sentencing judge acknowledged the injustice of Eugenia's sentence, lamenting ``there is nothing this court could do'' because of the laws that existed. Eugenia was a model prisoner winning awards, completing substance abuse programs, and serving as a model employee who worked at a call center and sewed thousands of pairs of shorts for the military. Eugenia suffered from a serious and rare form of cancer while in Federal custody. Eugenia would still be serving a sentence today--a sentence that would be costing taxpayers hundreds of thousands of dollars and depriving children of a mother--had it not been for the highly unusual grant of a Presidential commutation. Who benefited from the many years Eugenia spent in prison?

How do we fix this problem or at least take an important step toward solving it? We have learned that our exploding prison population is in large part due to ineffective sentencing laws and the increasing number and length of Federal mandatory minimum sentences. Mandatory sentences, particularly drug sentences, can take individualized review out of a judge's hands by requiring a one-size-fits-all sentence imposed by Congress. And the number of Federal mandatory sentences has doubled during the last 20 years.

More than 60 percent of Federal district court judges agree that existing mandatory minimums for all offenses are too high. Many think they are just bad policy. Justice Anthony Kennedy said: ``I am in agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise and often unjust mechanism for sentencing.''

The Judicial Conference of the United States, which represents all Federal judges, has ``consistently opposed mandatory minimum sentences for more than 50 years.'' The bipartisan U.S. Sentencing Commission recently said, after studying this issue in a 369-page report, ``[T]he Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently. . . .''

We subject our Federal judges to a rigorous confirmation process. Congress should allow these judges to use their legal and law enforcement expertise to do their jobs and not micromanage their sentencing decisions. It is important in achieving both justice and public safety to have sentences tailored to the individual facts, background, and circumstances of each case and defendant. Only the judge who hears a case has the ability to set such a sentence.

We are at a crucial moment in history. We can no longer afford sentencing policies that are not working, are draining limited Federal funds, are leading to unjust sentences, and are failing to make our families and communities safer.

As a result of these problems, some of the country's leading sentencing experts have called for the repeal of all Federal mandatory minimums. The Smarter Sentencing Act takes more modest but important steps in modernizing drug sentencing policy.

First, it modestly expands the existing Federal safety valve, which allows Federal judges to sentence certain nonviolent drug offenders below existing mandatory minimum sentences. This change will only apply to certain nonviolent drug offenses that do not involve weapons. It is supported by nearly 70 percent of Federal district court judges.

Second, the bill will permit those serving sentences that Congress has determined are unjust and racially disparate to petition for a reduction in their sentence. I authored the bipartisan Fair Sentencing Act in 2009 to help reduce the sentencing disparity between crack and powder cocaine offenses and to eliminate the mandatory minimum sentence for simple possession of crack cocaine. While African Americans were approximately 30 percent of crack users, they comprised more than 80 percent of those convicted of Federal crack offenses.

The bill passed the Senate unanimously. As one Judiciary Committee Republican stated, ``[W]e are not able to defend'' the unfair sentences that existed before the Fair Sentencing Act--sentences that disproportionately affected African Americans. Another stated that these changes were ``long overdue'' and that ``Congress should act without any more delay to start to reduce the sentencing disparity.'' A third Republican member of the Judiciary Committee stated, ``The law created inequities. . . . We are working and will continue to work to roll back the injustice that was done.''

Because of the timing of their sentences, some individuals are still in jail serving lengthy, pre-Fair Sentencing Act sentences that Congress has determined are unfair. To be clear, the Smarter Sentencing Act does not automatically reduce a single sentence in this respect. But it allows individuals sentenced under the old crack-powder sentencing disparity to petition courts and prosecutors for a review of their case, consistent with changes in the law made by the Fair Sentencing Act. Considering all of the circumstances, including public safety and the nature of the offense, a judge can grant or deny any petition. Federal courts successfully and efficiently conducted similar crack-related sentence reviews after 2007 and 2011 changes to the Sentencing Guidelines. Based on recent U.S. Sentencing Commission data, this change in the law alone could significantly reduce prison overcrowding and save taxpayers more than $1 billion.

Third, the bill lowers mandatory penalties for certain nonviolent drug offenses. These modifications do not apply to, for example, statutory penalties involving firearms or bodily injury. And this bill does not repeal any mandatory minimum sentences. Rather, it reduces certain nonviolent drug mandatory sentences so that judges can determine, based on individual circumstances, when the harshest penalties should apply. Let's allow these judges to do their jobs.

This bill crosses party lines it is a bipartisan compromise from a Republican from Utah and a Democrat from Illinois. This bill is the right thing to do, which is why it is endorsed by faith leaders from the National Association of Evangelicals to the United Methodist Church. This bill would improve public safety, which is why it is endorsed by the National Organization of Black Law Enforcement Executives. And this bill is good policy, which is why it is endorsed by groups on the right and left, ranging from Heritage Action to the ACLU. It is endorsed by Justice Fellowship of Prison Fellowship Ministries, Grover Norquist, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the ABA, the Constitution Project, the National Association of Criminal Defense Lawyers, NAACP Legal Defense and Educational Fund, Families Against Mandatory Minimums, the Lawyers' Committee for Civil Rights Under Law, Drug Policy Alliance, and Brennan Center for Justice, among others.

I thank my partner in this effort, Senator Lee. We have taken many months to study this problem and work together on a bipartisan solution.

I am grateful to Senator Leahy, the chairman of the Judiciary Committee, for joining this effort and, as always, for his leadership on criminal justice reform.

I urge my colleagues to support the Smarter Sentencing Act.

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