Pubdate: Wed, 08 May 2013
Source: Wall Street Journal (US)
Copyright: 2013 Dow Jones & Company, Inc.
Author: Douglas A. Berman And Harlan Protass


'Mandatory minimum' laws need an overhaul. Congress is ready. Will the
president make good on his promises?

There are few topics on which leading Democratic and Republican voices
agree these days. But the recently introduced Justice Safety Valve Act
of 2013 - which would authorize federal judges to impose prison terms
below statutory mandatory minimums in some cases represents a new
bipartisan effort at addressing America's overcrowded prisons and
bloated budget. Passage of the act, though, will depend on President
Obama and his Justice Department getting behind it.

Mr. Obama has long talked about reforming federal mandatory minimum
sentencing laws. During the 2007 presidential campaign, he promised
that if he were elected his administration would review those
provisions to see "where we can be smarter on crime and reduce the
blind and counterproductive warehousing of nonviolent offenders."

After Mr. Obama gained the White House, federal prosecutor Sally
Quillian Yates testified for the Justice Department at a May 2010
hearing before the U.S. Sentencing Commission that the Obama
administration believes "there are real and significant excesses in
terms of the imprisonment meted out for some offenders" under existing
mandatory minimum laws. Just last month, Attorney General Eric Holder
lamented that "too many people go to too many prisons for far too long
for no good law enforcement reason" and that federal mandatory
minimums "too often bear no relation to the conduct at issue, breed
disrespect for the system, and are ultimately counterproductive."

Yet President Obama still has not proposed or championed any major
reforms. So the bipartisan Justice Safety Valve Act now presents his
administration with an opportunity to make good on his pledges. By
throwing his weight behind this act, and urging Congress to make it
apply retroactively to those still imprisoned based on
mandatory-minimum provisions, the president could demonstrate that his
campaign promises of hope and change were more than political slogans.

Congress began embracing harsh mandatory-minimum laws in the 1980s, in
part over frustration with judges who seemed lax in sentencing, but
mostly because of the crack epidemic poisoning the country.
Legislators believed that long prison terms could help deter drug
crimes for instance, five years for five grams of crack, roughly a
couple of sugar cubes in weight. Lawmakers thereafter frequently
backed new mandatory minimums, which enabled them to claim on the
campaign trail that they were "tough on crime."

Though good political rhetoric, mandatory-minimum sentencing laws have
proven to be bad policy. They transfer enormous power to
prosecutors - who choose the charges to bring - and federal judges
regularly complain of being required to impose excessively long prison
terms on nonviolent offenders. These laws also fueled a federal-prison
population explosion - with its consequent financial costs, ruined
lives and broken families.

The U.S. Sentencing Commission reports that nearly 20,000
defendants - most of whom are nonviolent drug offenders - face long,
mandated minimum prison terms each year, at a "warehousing" cost of
nearly $30,000 annually for each inmate. About half of all federal
prisoners doing time today - a population of more than 218,000 - are
incarcerated for narcotics offenses. President Obama's fiscal year
2013 budget requests $6.8 billion for federal prisons alone, more than
a quarter of the entire Justice Department budget.

The Justice Safety Valve Act, recently introduced by Sens. Patrick
Leahy (D., Vt.) and Rand Paul (R., Ky.), and to the House by Reps.
Robert C. "Bobby" Scott (D., Va.) and Thomas Massie (R., Ky.), could
help reduce the millions of taxpayer dollars wasted keeping thousands
of people sentenced under mandatory minimum laws locked up. The bill
would enable federal judges to consider when or whether a
mandatory-minimum sentence serves legitimate law-enforcement purposes
given the particular circumstances of the crime and defendant. Judges
could impose prison terms below the statutory minimums only when they
explain, through an on-the-record, reviewable opinion, that a shorter
term is sufficient to serve the express goals of the criminal justice
system set out by Congress.

As described by Julie Stewart, the president and founder of Families
Against Mandatory Minimums, the bill would "ensure that judges use our
scarce prison beds and budget to keep us safe from truly violent
offenders." According to Sen. Leahy, the bill would help rein in
ballooning prison budgets, which mean "less money for . . . law
enforcement" and "less funding for crime prevention programs and
prisoner re-entry programs."

No single piece of legislation can reform all the laws and practices
that have resulted in the federal government now imprisoning more
Americans than were incarcerated by all 50 states a few decades ago.

But bipartisan support and sponsorship of the Justice Safety Valve Act
highlights that prominent lawmakers on both sides of the aisle
agree - at this time of lean budgets, sequester cuts and overcrowded
prison facilities - that the current federal sentencing scheme is
neither fair nor effective, and that mandatory-minimum sentencing laws
lie at the heart of the problem.

President Obama's vocal support of this bill would signal a real
commitment to using his bully pulpit to advocate on behalf of
significant reform proposals. If he does not, the president's failure
to champion sentencing reform may become his most lasting federal
criminal-justice legacy.

Mr. Berman is a law professor at the Moritz College of Law at The Ohio
State University and the co-author of "Sentencing Law & Policy"
(WoltersKluwer 3d ed., 2013). Mr. Protass is a criminal-defense lawyer
in New York and an adjunct professor at the Benjamin N. Cardozo School
of Law, where he teaches about sentencing.

A version of this article appeared May 8, 2013, on page A17 in the
U.S. edition of The Wall Street Journal, with the headline: A Saner
Approach to Sentencing.
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