Let’s face it: Currently many justice advocates are so desperate for a big legislative win they’ll endorse anything. How do I know? Because so many advocates are endorsing S. 2123, the Senate’s Sentencing Reform and Correction Act, without pointing out specific meaningful reforms. And don’t let the term “sentencing reform” in the bill’s title fool you. Note that currently no one can verify cost savings or prison reduction when they refer to the bill, they just say “wow, isn’t this bipartisan…” and that’s it. When people aren’t focused on hard data such as cost reduction that’s a red flag.
To add to it, the President wants a justice reform legacy trophy as he walks out the door. With that, anything can get signed without the slightest push for meaningful reform. The federal prison population exploded 800 percent from 1980 to 2012 because of federal justice policy but you’d never know that looking at S. 2123. Judiciary Committee Chairman Chuck Grassley (R-IA) voted for the very policies that made America the world’s leading jailer as the federal prison population shot up from 25,000 to 219,000 in 30 years, yet here he is 20 years later, adding mandatory minimums to another justice bill just like old times.
It’s a big moment in justice reform and it’s a moment that shouldn’t be squandered. The odds of the two Chairs of the House and Senate Judiciary Committees bringing up a second justice reform bill next year is not good. So the three pieces of legislation, The SAFE Justice Act, the Senate bill and Chairman Goodlatte’s xerox of the Senate bill, are probably it for at least a few more years.
Does the Senate bill address mass incarceration? Is there a meaningful number of federal inmates who would be impacted? As if to be working alongside Grassley’s communications staff, the U.S. Sentencing Commission wrote a so-called evaluation of the S. 2123, the Sentencing Reform and Correction Act that somehow left out:
1. The impact on the prison population given the bill’s numerous exclusions regarding who may benefit from S. 2123’s reforms.
2. How many federal inmates would likely be subjected to the two new mandatory minimum penalties.
3. The impact on who would be excluded from retroactive relief. The list of exclusions for retroactivity is lengthy, so that the Sentencing Commission didn’t evaluate this is amazing.
4. An evaluation of inmates excluded from the expanded safety valve as compared to those who could benefit under the existing safety valve for the 10-year mandatory minimum.
5. The impact on the federal prison population overall when we consider who is excluded in the compassionate release section of S. 2123.
Shouldn’t Judge Patti Saris and the Commission have taken a swing at the above questions? Don’t lawmakers and the public need to know that information to better access whether or not S. 2123 would do anything to reduce mass incarceration? Unless the Congressional Budget Office scorers also happen to be federal prosecutors, they are unlikely to come up with an analysis on cost savings. We know the provision to make the Fair Sentencing Act retroactive would likely impact 6,000 people. What we don’t know is how the decrease would be offset by the number of people who can’t qualify for reform overall in S. 2123. Calculating overall impact and cost savings is better done by the Sentencing Commission.
No one can blame justice advocates for wanting a win. It’s been a long cold winter with few reform bills passing. But the problem is that the current legislation being supported is nowhere near what’s required. Perhaps the only confirming relevance of the Senate “justice” bill is that it verifies no real reform will occur as long as Sen. Grassley Chairs the Senate Judiciary Committee. Since his definition of “reform” always includes mandatory minimums — the very sentencing policy that spiked over incarceration — advocates may have to wait until 2017 for the next big opportunity in justice reform policy n the federal level.