Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.

The media is full of praise for the Senate Judiciary Committee which yesterday passed a sentencing reform bill addressing mandatory minimum sentencing laws on drug offenses.

Not so fast. Here is S.1410, the Smarter Sentencing Act of 2013, as originally introduced by Senators Durbin, Leahy, and Whitehouse.

The version that passed the Judiciary Committee is a watered down, amended version of Durbin's bill. Durbin introduced a "Manager's Amendment" weakening the safety valve reform provision. Then the Committee approved amendments by Republican Charles Grassley that turned the bill into an enhanced crime bill, upping sentences and introducing more mandatory minimums for some non-drug crimes.

On mandatory minimums, the bill is an improvement, but far less than what is needed and certainly not historic. It reduces the mandatory minimum terms for drug offenses from 20, 10 and 5 years to 10, 5 and 2 years, respectively, and allows the 2010 crack cocaine sentencing reductions to apply retroactively to some classes of inmates, in the discretion of the judge. [More...]

But instead of considering another bill on yesterday's agenda, S. 619 by Sen. Leahy and Rand Paul, which would grant judges discretion in all cases to not impose a mandatory minimum sentence, the Committee declared their bill "held over."

In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.

The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible. It increases penalties for domestic violence offenses. It adds new mandatory minimum sentences for some terror and arms-related crimes.

Grassley didn't get everything he wanted. His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.

Durbin's amendment neutered the Safety Valve reform. The Safety Valve is currently one of two ways out from a mandatory minimum sentence (the other is becoming a cooperator for the government and ratting out others.) It currently applies to a very limited number of defendants -- those with no more than 1 criminal history point, who meet some other requirements. The intent in reforming the provision was to increase the number of offenders to whom it would apply.

As introduced, S. 1410, increased the application of the Safety Valve to include those in Criminal History Category II (defendants with up to 3 criminal history points.) But as a result of Durbin's Manager's Amendment yesterday, the reach of the safety valve will only increase to those with up to two criminal history points, which means those in Criminal History Category I and only half of those in Criminal History Category II.

Also, those with two criminal history points will face extra exclusionary provisions. For example, those with 2 criminal history points will still be ineligible if they have ever been convicted of a crime that involves the use or attempted use of force. So anyone with 2 points with a prior misdemeanor conviction for being in a bar fight is ineligible.

Examples of those who will have more than 2 points and see no safety valve relief: Someone with a DUI (1 point) and a probation violation (2 points) for not paying the fines or attending alcohol classes (which in many cases they couldn't do because their drivers' license was revoked and they couldn't get to the classes. Or because they got fired for not being able to get to work and had no money to pay for drug testing or classes or court costs.)

Also, anyone with any misdemeanor or one point violation, who was on bond for any offense, however minor, at the time of the commission of the drug offense for which they are now being sentenced. Being on bond at the time of the commission of the offense is 2 points.

Also excluded: Anyone with a felony conviction (3 points) committed or still on supervision within 15 years of the the drug offense for which they are now being sentenced.

To constitute reform, at a minimum, the Safety Valve needs to apply to those with 3 criminal history points. Otherwise, it's not appreciably different from current law.

When Leahy and Rand introduced their Safety Valve reform bill, S. 619 (which was held over yesterday) I predicted a watered-down version would pass. I was more optimistic about Holder's new Justice Department guidance memos. Both seem to be left in the dust.

The Leahy-Rand bill would apply to all mandatory minimums, not just drug offenses and apply regardless of the number of criminal history points.

1)General rule. Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).

The mandatory minimum reductions are a step in the right direction. Two years is better than five, five is better than ten, and ten is better than twenty. I am grateful that my clients who are ineligible for the safety valve will face lower mandatory minimum penalties. But what is needed is for mandatory minimums to be eliminated, not reduced, and until they are, for judges to have the discretion to sentence below mandatory minimums for any reason they deem appropriate.

Another thing the Durbin bill is lacking is retro-activity for the newly reduced mandatory minimums. Which means, a lot of pending cases may face a logjam. I doubt I would advise a client to plead to a mandatory minimum count now, knowing this bill has hopes of passing -- unless the court agreed to stay sentencing until the bill was passed or defeated, which could take many more months.

Opposing Grassley's amendments were Sens. Patrick Leahy, D-Vt., Mazie Hirono, D-Hawaii, and Mike Lee, R-UT.

The amended bill passed by a vote of 13 to 5. All 10 Dems on the committee voted for the amended bill, as did Republican Sens. Ted Cruz of Texas, Jeff Flake of Arizona and Mike Lee.

If the majority of Committee Republicans weren't going to vote for the bill in the first place, why did so many Democrats vote for Grassley's amendments? Why did Durbin amend his own bill? Unless some of the Dems threatened to vote against the bill without amendments, the Dems had enough votes to pass the bill as introduced with no Republican support and no amendments. So long as Mike Lee, a co-sponsor of the Manager's Amendment voted for it, wouldn't it still be "bipartisan?"

Hopefully, the full Senate will strike Grassley's amendments. Penalties for sex offenders are already sky high, and while most sex offenses and domestic violence offenses are prosecuted in state court, offenses occurring on Indian reservations are charged in federal court, which means the increased punishment is more likely to target minorities, something the reforms were intended to reduce.

I don't have much confidence the full Senate will strike Grassley's amendments. There are more, not less, obstructionist, backwards-thinking Republicans in the Senate as a whole than on the Judiciary committee.

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  • Display: Sort:
    Thank you, Jeralyn (5.00 / 1) (#1)
    by Peter G on Fri Jan 31, 2014 at 09:14:54 AM EST
    for telling the truth about this disappointing (yet so typical) sell-out, and doing so very clearly. What are the chances that it was the DOJ and not the Republicans who really got Leahy to cave for basically nothing?

    "What are the chances......?" (5.00 / 1) (#8)
    by NYShooter on Fri Jan 31, 2014 at 08:08:10 PM EST
    Hmmm, let me consult the archives:

    Ahh, There it is: Pogo...."We have met the enemy, and....."


    Yes, to all three (5.00 / 2) (#6)
    by Peter G on Fri Jan 31, 2014 at 03:53:23 PM EST
    Not that you are seriously asking for a response.

    When did these become federal crimes? (none / 0) (#7)
    by Mr Natural on Fri Jan 31, 2014 at 07:45:27 PM EST
    Many sex offenses, particularly those targeting (none / 0) (#14)
    by Peter G on Sat Feb 01, 2014 at 11:22:23 AM EST
    minors, were made federal crimes -- when they involve crossing state or international borders, using the facilities of interstate commerce, and other federal jurisdictional "hooks" -- were made crimes in the so-called "PROTECT Act" in 2003. Many criminal defense lawyers (and judges) consider the sentencing provisions of the PROTECT Act already to be unduly inflexible and harsh. There were a few, but not many, federal offenses of that nature previously. Of course, the notorious Mann Act has been on the books, in one form or another, since 1910.  As for domestic violence offenses having an interstate or international character, the Violence Against Women Act, a Joe Biden baby, was passed in 1994, and renewed periodically since, most recently in 2012. VAWA's initial constitutional overreach (in terms of federal vs. state power) was cut back by the Supreme Court in the Morrison case in 2000.

    Yup, that's the answer to everything.... (5.00 / 2) (#9)
    by NYShooter on Fri Jan 31, 2014 at 08:14:09 PM EST
    More, harsher penalties.

    Of course, you can be a real Brave heart when you're in a position to exempt yourself from draconian laws meant strictly for the "little people."

    Democrats control the Senate (none / 0) (#2)
    by Mikado Cat on Fri Jan 31, 2014 at 11:26:41 AM EST
    Nothing can come out of the senate without the approval of the Democrats, no way to blame this on the GOP regardless of how it is initiated.

    I Guess You Skipped... (none / 0) (#3)
    by ScottW714 on Fri Jan 31, 2014 at 11:49:36 AM EST
    ...7th grade civics class a whole lot.

    So the amendments introduced by R's are not R's fault at all, it's the D's fault R's introduced  amendments because... drum roll, they voted on them.

    Better to keep Congress gridlocked that take what you can get, that pretty much describes the House these days.


    Apparently, Mikado's mission is to remind (5.00 / 1) (#4)
    by Anne on Fri Jan 31, 2014 at 12:54:08 PM EST
    everyone that nothing bad that happens is the fault of Republicans.

    Never mind the raft of criticism Jeralyn gave the Democrats for how they handled the whole thing, right?


    Not to worry. One (none / 0) (#10)
    by Wile ECoyote on Sat Feb 01, 2014 at 05:45:34 AM EST
    of the main reasons I come to this site is to read how bad the republicans are.  That and the humor from the sack cloth and ashes brigade.  

    Really? (none / 0) (#11)
    by Yman on Sat Feb 01, 2014 at 07:58:50 AM EST
    That and the humor from the sack cloth and ashes brigade.

    Do you have any idea what that expression means?  Because there's no "sackcloth and ashes brigade" here.


    yup (none / 0) (#12)
    by Wile ECoyote on Sat Feb 01, 2014 at 09:48:45 AM EST
    So then it should be very easy ... (none / 0) (#13)
    by Yman on Sat Feb 01, 2014 at 09:54:52 AM EST
    ... for you to cite some examples to back up your claim.

    (sound of me not holding my breath).


    That Reply Might As Well... (none / 0) (#15)
    by ScottW714 on Mon Feb 03, 2014 at 04:44:46 PM EST
    ...been in Chinese, cause if there is one thing all republican her have in common, they hate backing up claims.

    I don't (none / 0) (#16)
    by Mikado Cat on Mon Feb 03, 2014 at 08:29:23 PM EST
    think 7th grade has civics.

    Dem's control the senate, if you don't understand what that means, I am not the one that failed civics.

    Also I don't absolve GOP, just point out that most of the blame for any sausage that comes out of the senate has to lie with the party turning the crank.