the sentencing reform and corrections · pdf filethe sentencing reform and corrections act ......

The Sentencing Reform and Corrections Act

Good Conservative Policy that

Enhances the Safety of Our Communities and Those Who Protect Them

April 8, 2016

1

The 1980s Problem

IN THE 1980s

• The violent crime rate reached a high point after trending

upward for two decades

• The crack epidemic was linked to much of the violent crime

in the early-to-mid 1980s

Source: NAAUSA Presentation

2

Response

• Increased focus on violent and drug crimes

• Limit judicial discretion

• Proliferation of mandatory minimum sentences

• More criminals serving longer prison terms

Source: NAAUSA Presentation

3

Response

• Examples:

o 1984 Armed Career Criminal Act

o 1986 Anti-Drug Abuse Act

o 1986 Use of a weapon during the commission of a crime of

violence or drug trafficking offense

o U.S. Sentencing Guidelines

Source: NAAUSA Presentation 4

Results

• The violent crime rate did go down

• But opponents of the legislation erroneously equated the growing federal prison population with the reduction in the violent crime rate, as if there was a causal link between the two

5

The Reality

• The current federal sentencing regime aimed to strike the

right balance between all interests and did contribute to a

dramatic reduction in crime and historic lows for violent

crime

• Its architects successfully protected the public and deserve

to be acknowledged and validated for their service

6

The Reality

• The growing federal prison population is nothing more

than a contributing factor

• The violent crime rate is a national figure

• The vast majority of crimes—especially violent crimes—are

prosecuted by the states

• The states are mostly responsible for the reduction in the

violent crime rate since the 1980s

7

The Reality

ACCORDING TO THE DOJ BUREAU OF JUSTICE STATISTICS

8

Federal Improvements

• Does not scale back tough-on-crime approach

• Makes modest improvements to the current federal

sentencing regime by amending a few policies that

produced unintended consequences that allow for

malfunctions of the system

THE SENTENCING REFORM AND CORRECTIONS ACT

9

Federal Improvements

• Fixes specific problems that create imbalance in the scales

of justice

• Perhaps most important, focuses more on risk and

recidivism reduction, which enhances public safety

THE SENTENCING REFORM AND CORRECTIONS ACT

10

More to the Story

• Overfederalizationo Explosion of federal criminal lawo Explosion in the number of federal prosecutors

• Overcriminalizationo Today, an unimaginably broad range of socially and

economically beneficial conduct is criminalizedo Federal agencies have created so many criminal offenses, the

Congressional Research Service cannot even count them all

Sources: Federalist Society for Law and Public Policy Studies, “Measuring the Explosive Growth of Federal Crime Legislation,” by John S. Baker, Jr., and Dale E. Bennett;Heritage Foundation Fact Sheet #86 on Overcriminalization, “Overcriminalization: An Explosion of Federal Criminal Law,” April 27, 2011;CATO, Regulation, “Federal Crimes and the Destruction of Law,” by William L. Anderson, Winter 2009-2010

FEDERALRESPONSE

11

Explosion of Federal Criminal Law

Sources: Wall Street Journal, “As Criminal Laws Proliferate, More Are Ensnared,” By Gary Fields and John R. Emshwiller, July 23, 2011; Federal Bureau of Prisons Historical Information, “A storied past”;CATO, Regulation, “Federal Crimes and the Destruction of Law,” by William L. Anderson, Winter 2009-2010

• In 1980, there were approximately 3,000 federal crimes

• By 2014, there were roughly 4,500 federal crimes + an estimated 30,000+ criminal regulations

12

Explosion of Federal Prosecutors

Sources: Federalist Society for Law and Public Policy Studies, “Measuring the Explosive Growth of Federal Crime Legislation,” by John S. Baker, Jr., and Dale E. Bennett;Heritage Foundation Fact Sheet #86 on Overcriminalization, “Overcriminalization: An Explosion of Federal Criminal Law,” April 27, 2011;CATO, Regulation, “Federal Crimes and the Destruction of Law,” by William L. Anderson, Winter 2009-2010

• In 1980, there were

approximately 1,500

federal prosecutors

• By 2014, there were

more than 7,500 federal

prosecutors

13

5x the Number

FEDERAL PROSECUTORS SINCE 1980

• Intense pressure to keep these prosecutors busy

and get statistics

• One result: a certain deterioration in the level and

seriousness of cases that are prosecuted by the

federal government

• The low-hanging fruit: lower-level offenders, who

are much easier to get than higher-level offenders14

Federal Prison Population Growth

Source: Federal Bureau of Prisons Historical Information, “A storied past”15

Misleading Narrative

• The bill’s opponents claim the statement, “federal prisons

are full of nonviolent drug offenders,” is a false narrative

• To prove their point, they say the federal and state prison

populations are NOT the same—less than 1% of criminals

in federal prison are there for simple possession, and drug

trafficking is inherently violent

16

Look at the Data

THEY’RE RIGHT

• The federal and state prison populations are NOT the

same

• But as noted earlier in the presentation, the data paints a

different picture

17

Look at the Data

ACCORDING TO THE DOJ BUREAU OF JUSTICE STATISTICS PRISONERS IN 2014

• Federal prisons are full of drug offenders

o 50% of federal prisoners were convicted drug offenders

• State prisons are full of violent offenders

o 53% of state prisoners were serving time for violent

offenses

Sources: DOJ Bureau of Justice Statistics Counts of Prisoners in 2014

18

Federal Prisoners in 2014


19

State Prisoners in 2014


20

Federal Prisoners in 2014

CRIMINAL HISTORY & AGE

• 31.7% of all federal prisoners had little or no criminal history

• 48.6% of federal drug offenders had little or no criminal history

• The average age of federal prisoners is 40 years old

o 19.4% of federal prisoners are 50 or older

o 5.6% are 60 or older

Sources: DOJ Bureau of Justice Statistics Counts of Prisoners in 2014U.S. Sentencing Commission , 2014 Datafile, USSCFY14

21

Overfederalization/criminalization

EFFECT

• Data shows that rather than focusing federal resources on

the most significant threats and the highest levels of

criminal conduct in society—the Al Capone, Pablo Escobar

and El Chapo types—the reality is that today’s federal

system is spending vast amounts of money prosecuting

and incarcerating non-violent and lower-level offenders

22

Overfederalization/criminalization

EFFECT

• Who are too often over-punished by the federal government

• And/or should otherwise be prosecuted by the states

23

A Deeper Look at the Data

DRUG OFFENSES

• 50% of the federal prison population

• DOJ is expected to use the hammer of mandatory

minimum sentences to identify and take down “kingpins”

and high-level traffickers

• But the reality on the ground is that most prosecutions,

despite resulting in significant prison sentences designed

for high-level traffickers, are netting lower-level offenders

Sources: DOJ Bureau of Justice Statistics Counts of Prisoners in 2014

24


FROM AN OCTOBER 2011 U.S. SENTENCING COMMISSIONREPORT TO CONGRESS

• Of those sentenced for drug offenses in 2009, the highest-level

traffickers—those defined as “high-level supplier or importer”—

made up just 11 percent of drug offenders sentenced in federal

courts

• Another 7.1 percent of drug offenders were organizers, leaders,

growers or manufacturers

Source: U.S. Sentencing Commission, “Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011

25


FROM AN OCTOBER 2011 U.S. SENTENCING COMMISSIONREPORT TO CONGRESS

• Meanwhile, 58.6 percent were street-level dealers or

below

• The lowest-level traffickers—those defined as “courier” or

“mule”—made up 27.8 percent of drug offenders

• Another 10.5 percent played “secondary” or

“miscellaneous” roles, such as lookout, pilot or bodyguard

Source: U.S. Sentencing Commission, “Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011

26

Malfunctions of the System

WELDON ANGELOS

• Convicted of selling marijuana to a police informant three

times while having a firearm on or near his body

• Angelos had very little criminal history, and he never used

or brandished the firearm during the undercover buys

• But the law enforcement officials in the case allowed him

to commit multiple offenses, knowing that 924(c)

mandatory minimums could be stacked on top of each

other by the prosecutor

27


WELDON ANGELOS

• Angelos received a mandatory minimum sentence of 55

years in federal prison—a sentence that far outweighs the

minimum sentence for hijacking, kidnapping, or rape

• The federal judge who was forced to impose this sentence

described it as “unjust, disproportionate to his offense,

demeaning to victims of actual criminal violence… [and]

one of those rare cases where the system has

malfunctioned.”28


SHOLOM RUBASHKIN

• A 56-year old Jewish rabbi with no criminal history is

serving 27 years for financial fraud despite there being no

actual loss, no actual victim of fraud

• 6 former AGs and 17 former high-ranking DOJ officials and

former federal prosecutors signed a letter to the court

declaring that they “cannot fathom how truly sound and

sensible sentencing rules could call for a life sentence or

anything close to it for Mr. Rubashkin”

29


SHOLOM RUBASHKIN

• 75 law professors and former federal prosecutors sent a

letter to AG Holder urging an investigation into

prosecutorial misconduct

• 51 members of congress wrote to AG Holder to investigate

this case for alleged prosecutorial and judicial misconduct,

as well as the fairness of the sentence

30

Lack of Rehabilitation

• 95% of federal prisoners will be released someday

• Yet the vast majority of them are not being rehabilitated

during their terms of incarceration

• Which means the status quo is releasing thousands of

unrehabilitated federal prisoners into our communities

every year

31

Threats to Public Safety

IRONICALLY

The result of these deficiencies is a federal prison population

that, with its rising costs and annual releases of

unrehabilitated prisoners…

is becoming a real and immediate

threat to public safety

32

BOP Budget Growth

ACCORDING TO THE DOJ INSPECTOR GENERALFROM STATEMENTS TO CONGRESS IN MARCH 2013 AND

FEBRUARY 2015

• The costs to operate the federal prison system continue to grow,

resulting in less funding being available for the Department’s

other critical law enforcement missions

• The Department cannot solve this challenge by spending more

money to operate more federal prisons unless it is prepared to

make drastic cuts to other important areas of the

Department’s operations33

BOP Budget Growth

ACCORDING TO THE DOJ INSPECTOR GENERALFROM STATEMENTS TO CONGRESS IN MARCH 2013 AND

FEBRUARY 2015

• In FY 2000, the budget for the BOP totaled $3.8 billion and

accounted for about 18 percent of the Department’s

discretionary budget

• In FY 2015, the BOP’s enacted budget totaled $6.9 billion

and accounted for about 25 percent of the Department’s

discretionary budget34

Focus on the Budget

DURING OUR TENURES

• We observed the budget, instead of law enforcement,

become the absolute center of focus of the DOJ and its U.S.

Attorneys

• In individual U.S. Attorneys’ offices across the country, lack

of funding was increasingly the reason behind failed or

abandoned law enforcement obligations and state and

local partnerships

35

The Need for Meaningful Reforms

• These deficiencies reveal the need for federal criminal

justice reforms that are not only meaningful, but based on

proven reforms carried out in states across the country

• Reforms that will fix the malfunctions of the system

• Reforms that will put a renewed focus on rehabilitation,

risk and recidivism reduction, and better reentry, which will

increase the safety of our communities and the law

enforcement officers/agents who protect them

36

The States

• Again, the vast majority of crimes—especially violent

crimes—are prosecuted by the states

• The states are mostly responsible for the reduction in the

violent crime rate since the 1980s

• 98% of prisoners sentenced for violent offenses in

2013-14 were incarcerated in state prisons

37

State Reforms

• Conservatives have long-recognized that the states are the

labs of our democracy

• A growing list of states have proven that we can protect

and even increase public safety with smarter approaches

and leaner budgets

• Republican governors in red states like Texas, Georgia and

South Carolina have led the way

38

Texas

• In 2007, Texas began implementing reforms designed to

utilize alternatives to incarceration and lower the prison

population while also increasing public safety

• Reforms focused on sentence length, prison programming,

and probation

• Texas spent $240 million up front, and they have since

closed 3 prisons and saved between $2-3 billion

• Texas now has a 20%+ lower prison population and crime is at its lowest level since 1968

Source: Right on Crime

39

Georgia

• Georgia’s system was so overloaded that sentenced

offenders were being held in jails, waiting for space to

open in prisons

• 2012 reforms prioritized prisons for housing high-risk

offenders and reduced recidivism through several means,

including alternatives to incarceration

• Violent crime is down 8%

Source: Right on Crime 40

South Carolina

• Facing crushing costs, South Carolina found ways to divert

some low-risk, nonviolent offenders from prison to

community-based programs

• The prison population is down over 9% and probation and

parole completion rates increased 12% and 9%

respectively

• Violent crime is down 16% from 2010 to 2013

Source: Right on Crime 41

State Reforms

ACCORDING TO PEW DATA“MOST STATES CUT IMPRISONMENT AND CRIME”

• Over the past 5 years, the majority of states have reduced their

imprisonment rates while experiencing less crime

• 32 states reduced both their imprisonment and crime rates

• With the national imprisonment rate down 6% from its peak in 2008 and the crime rate falling 16% over the same period, these trends provide further evidence that states can lower imprisonment and reduce crime at the same time

Source: Pew Public Safety Performance Project Analysis, Most States Cut Imprisonment and Crime

42

State Reforms

ACCORDING TO PEW DATA“MOST STATES CUT IMPRISONMENT AND CRIME”

• The 10 largest imprisonment rate decreases experienced a

13% decrease in the crime rate (average)

• The 10 largest imprisonment rate increases experienced

an 8% decrease in the crime rate (average)

Source: Pew Public Safety Performance Project Infographic, Most States Cut Imprisonment and Crime

43

The Need for Conservative Federal Reforms

• Such an approach is not a signal of weakness or “going soft

on crime”

• It is an acknowledgement that we can be a lot smarter and

accomplish the interests of justice and public safety much

more effectively and efficiently—at less cost to the

taxpayers

44

The Need for Conservative Federal Reforms

• The states have shown us what’s possible

• And keep in mind—state prisons are full of violent

offenders

• So if the states can do this, so can the federal government

45

Conservative Federal Reforms

THE SENTENCING REFORM AND CORRECTIONS ACTS

IN THE SENATE AND HOUSE

• The conservative version of meaningful reform

• These bills were shaped and have been driven and

endorsed by conservative former AGs, DAGs and U.S.

Attorneys

• They are thoughtful, measured and reasonable bills aimed

at making some of the most needed sentencing and

corrections reforms to the federal criminal justice system 46


• The sentencing reforms are more thoughtful and targeted

than any of the sentencing reform bills

o Rather than across-the board reductions, they are policy fixes

to specific problems that have caused imbalance in the scales

of justice

o And the 5 and 10-year mandatory minimums are preserved

47


• The Corrections Act (Title II of the Senate bill):

o Originally passed out of the Senate Judiciary Committee in

March 2014 by a vote of 15-2

o Senators Ted Cruz (R-TX) and Orrin Hatch (R-UT) both voted

yes, and Hatch was an original cosponsor

o Senator Tom Cotton (R-AR) has publicly stated his support of

this piece

48

Former Federal Law Enforcement Leaders Support

• 67 of us who have served on the front lines of our criminal justice system signed a letter to Senate leaders urging them to pass the Sentencing Reform and Corrections Act of 2015

• The 67 signers include former conservative AG Michael Mukasey, three former DAGs, two former Directors of the FBI, 40 former U.S. Attorneys, more than a dozen former federal judges, and several others who endorse this legislation because it is good for federal law enforcement and public safety

49


• Most of the 67 signers are noted conservatives who were

some of the most aggressive appointees when it came to

pursuing the prosecution of federal crime

50


Michael B. Mukaseyo Former United States Attorney

General

o Former Chief United States

District Court Judge, Southern

District of New York

o Former Assistant United States

Attorney, Southern District of

New York

Larry D. Thompsono Former United States Deputy

Attorney General

o Former United States Attorney,

Northern District of Georgia

51


William S. Sessionso Former Director of the Federal

Bureau of Investigation

o Former United States Attorney,

Western District of Texas

o Former Chief United States

District Court Judge, Western

District of Texas

Louis J. Freeho Former Director of the Federal

Bureau of Investigation

o Former United States District

Court Judge, Southern District

of New York

o Former Assistant United States

Attorney, Southern District of

New York

52


Paul Cassello Former Federal District Court

Judge, District of Utaho Former Associate Deputy

Attorney General, United States Department of Justice

o Former Assistant United States Attorney, District of Utah

Bob Barro Former Member of Congress

(R-GA)o Former United States Attorney,

Northern District of Georgiao Former Anti-Drug Coordinator

for the United States Department of Justice, Southeastern United States

53


Brett L. Tolmano Former United States

Attorney, District of Utaho Former Member of the

Attorney General’s Advisory Committee

o Former Assistant United States Attorney, District of Utah

Matthew D. Orwigo Former United States

Attorney, Eastern District of Texas

o Immediate Past President, NAFUSA

o Former Assistant United States Attorney, Eastern District of Texas

And several more… 54

Views of the Current FBI Director

FBI DIRECTOR JAMES COMEY BEFORE THE SENATE JUDICIARY COMMITTEE RE S. 2123

• “As you know, we don’t take positions on legislation, but because I

spent my career as a prosecutor, it’s an area of interest of mine. I

actually read the bill and my reaction was it’s reasonable, the

things that are discussed in there are reasonable. I have found

mandatory minimums - and we may disagree on this - to be an

important part of making some of the most important cases I was

involved with. But I think that the reform as I understand it

seems reasonable to me.”55

Views of the Current FBI Director

FBI DIRECTOR JAMES COMEY BEFORE THE SENATE JUDICIARY COMMITTEE RE S. 2123

• “Given the recidivism rate, which is one of the things that’s

exciting about the legislation Senator Grassley talked about,

trying to get us doing a better job of reducing recidivism…”

56

Conservative Groups Support

• Americans for Tax Reform

• Faith & Freedom Coalition

• FreedomWorks

• Prison Fellowship

• Koch Industries

• And many others

CONSERVATIVEGROUPSSUPPORTTHESENATEANDHOUSEBILLS

57

Addressing Concerns in the Senate Bill

• To address concerns about violent offenders being

released early, the enhanced mandatory minimum

sentence reductions for armed career criminals and

offenders who used firearms in the commission of their

crimes could be removed

• And retroactivity of drug offenders could be limited

58

The Consequences of Doing Nothing

• Again, the costs to operate the federal prison system

continue to grow

• If we do nothing, drastic cuts will have to be made to the

Department of Justice’s critical law enforcement missions

59

The Consequences of Doing Nothing

• Again, 95% of federal prisoners will be released someday

• Yet the vast majority of them are not being rehabilitated

during their terms of incarceration

• The status quo is releasing thousands of unrehabilitated

prisoners into our communities every year

60

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