Is There a Perfect Storm for Federal Sentencing Reform? [FEATURE]

After decades of ever-increasing resort to mass incarceration in the United States, we seem to be reaching the end of the line. Driven in large part by economic necessity, state prison populations have, in the past three years, begun to decline slightly. The federal prison system, however, continues to grow, but now, there are signs that even at the federal level, the winds of change are blowing, and the conditions are growing increasingly favorable for meaningful executive branch and congressional actions to reform draconian sentencing policies.

There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

Earlier this week, the Chronicle reported on Attorney General Holder's speech to the American Bar Association in San Francisco, where he announced a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing, especially a backing away from the routine use of mandatory minimum sentencing via charging decisions by federal prosecutors.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said Monday. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

But while Holder outlined actions that can be taken by the executive branch, he also signaled administration support for two pieces of bipartisan sentencing reform legislation moving in the Senate. Those two bills, the Justice Safety Valve Act (S. 619), introduced in the spring, and the Smarter Sentencing Act (S. 1410), introduced just last week, have better prospects of moving forward now than anything since the Fair Sentencing Act passed three years ago. .

That's because it's not just Democrats or liberals who are supporting them. The Justice Safety Valve Act, sponsored by Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT), has not only the usual suspects behind it, but also The New York Times, conservative taxpayer advocate Grover Norquist, and a group of 50 former prosecutors. And, somewhat surprisingly, that bane of liberals, the American Legislative Exchange Council (ALEC), just came out in with model legislation mirroring the act's provisions.The Justice Safety Valve Act would allow federal judges to sentence nonviolent offenders below the federal mandatory minimum sentence if a lower sentence is warranted.

The other bill, the Smarter Sentencing Act, also has bipartisan support and was sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT). It would reduce some federal mandatory minimum sentences, make a modest expansion to the safety valve provision (though continuing to exclude anyone previously incarcerated in prison for more than 13 months in the past 10 years), and make the 2010 Fair Sentencing Act applicable to persons sentenced before its enactment, which would reduce sentences for people convicted of crack cocaine offenses.

The Justice Safety Valve Act has companion legislation in the House, again bipartisan, sponsored by Reps. Bobby Scott (D-VA) and Thomas Massie (R-KY). And another House bill, the Public Safety Enhancement Act (H.R. 2656), cosponsored by Scott and Rep. Jason Chaffetz (R-UT), would allow certain federal prisoners to be transferred from prison to community supervision earlier if they take rehabilitation classes, thus saving taxpayer money while improving public safety.

Only bolstering the case for further sentencing reform is the US Sentencing Commission's preliminary report on crack retroactive sentencing data, released late last month. That report found that some 7,300 federal crack defendants received an average 29-month reduction in their sentences, saving roughly half a billion dollars in imprisonment costs without an concomitant increase in crime rates.

"Taxpayers have received the same level of crime control but for a half- billion dollars cheaper," noted Families Against Mandatory Minimums (FAMM). "What’s not to love?"

Given the passage of the Fair Sentencing Act three years ago with conservative support, the proven budgetary benefits of reducing incarceration, and the current role of conservatives in pushing for reform, the chances are better than ever that something could pass this year, and even if it doesn't, the changes announced by Holder should ensure that at least some federal drug defendants will get some relief, observers said.

"The policies Holder described in his speech will probably help produce reduced drug sentences in some cases," said Marc Mauer, executive director of the Sentencing Project. "But it is also important in a symbolic sense. The fact that the attorney general is leading this conversation may help to open up the political space where we can have a different discussion about crime policy. The discussion has been evolving significantly over recent years, and in some ways, his speech represents an affirmation that the climate has shifted, and that there is commitment from the top to moving forward on sentencing reform."

"I think we're at a moment when bipartisan sentencing reform is possible," said Bill Piper, national affairs director for the Drug Policy Alliance. "We've got those bipartisan bills in Congress, we have that ALEC endorsement, we have Holder's speech, and more."

"Given how little bipartisan cooperation there is on anything, it's remarkable that we have two bills in the Senate addressing mandatory minimums," Mauer noted. "This bipartisan cosponsorship is very intriguing, and is contributing to the momentum. There has been no significant backlash to Holder's speech, and that suggest a pretty broad recognition that the time has come to move in this direction."

Not every reformer was as sanguine as Mauer. In California, marijuana reformers and industry players, many of whom have borne the brunt of a federal crackdown, were offended that Holder would give a speech in San Francisco and not address their issue. Harborside's Steve DeAngelo posted the following statement in reaction: "Eric Holder's speech advocating drug war changes rings hollow to those of in states that have already passed reform legislation, only to see it relentlessly attacked by Mr. Holder's very own US Attorneys," DeAngelo said. "We had hoped the Attorney General would clarify federal policy toward state cannabis laws, as he promised to do almost a year ago. But instead of concrete action to support state reform efforts, Holder offered more vague promises about future changes in federal policy."

Conversely, it wasn't just reformers seeing possible changes on the horizon.

"It is impressive that Holder has decided to stay with a lame duck president and emphasize this issue," said Phil Stinson, professor of criminal justice at Bowling Green University. "I think there is a consensus forming for reform, and I would not have thought that possible two years ago. If something is going to happen, I expect it to happen within the next 18 months."

Stinson made a telling, if seldom mentioned, point.

"This is largely driven by economics," he said, "but also by the fact that by now, almost everybody knows a family member or friend or friend's child who has been behind bars. It has taken awhile to get to this point, but now the issue is ripe, and the opportunity is there."

"It looks like there is a real opportunity in Congress," Piper argued. "The general consensus is that there are too many people in prison and too many tax dollars wasted. Even some of the most conservative offices we talk to want to talk about sentencing reform. Something is possible, even though this is Congress and the Obama administration we're talking about. The stars are aligning, but it will take a lot of work to get it done. There seems to be something real happening with sentencing reform based on the number of Republicans starting to talk about it, and I'm certainly more optimistic than I was a year ago."

"While things are moving in the Senate, the House is more difficult to predict," said Mauer. "But even if something does get through, the scale of the problem of mass incarceration is going to require a wholesale shift in approach and policy. The current proposals are steps in that direction, but it will require a much more substantial shift if we are to see significant reductions."

Or, as Nora Callahan of the November Coalition has long argued, reforms on the back end -- sentencing -- will have limited impact on people sent to prison for drug offenses, absent change on the front end -- ending drug prohibition and prohibition-driven policing.

Whether a perfect storm for sentencing reform is brewing remains to be scene, but there are winds blowing from unusual directions. The collision of Democratic social justice liberalism and Republican fiscal conservatism and libertarianism could on this occasion produce, if not a perfect storm, at least the first rumblings of a political earthquake.

[See our related story this issue, "As Pressure Mounts, Holder Acts on Sentencing Reform."]