Lawmakers consider bipartisan sentencing reform

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Robby Soave Reporter
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With Congress divided over virtually everything from immigration to student loans, supporters of sentencing reform for nonviolent crimes are quietly hoping bipartisan consensus on the issue will drive a bill forward.

But President Barack Obama’s silence isn’t helping matters, supporters say.

The Justice Safety Valve Act of 2013, which was introduced in Congress with both Republican and Democratic support, would reform sentencing mandates in criminal court cases.

Federal laws currently require steep penalties for people convicted of nonviolent, typically drug-related, crimes. Under so-called “mandatory minimums,” the sentences stack, meaning that convicted criminals can face 10, 20, and even 50 years in prison for multiple nonviolent offenses.

Since the judges and juries often have no choice but to impose the sentence prescribed by law, the system transfers all the power into the hands of the prosecutors who get to decide the charges, said Doug Berman, a law professor at Ohio State University’s Moritz College of Law.

“Even if the judge thinks the crime isn’t that severe the mandatory minimums end of tying the hands and requiring the judge to oppose sometimes his very own sense,” said Berman in an interview with The Daily Caller News Foundation.

Mandatory minimums affect a large swath of the U.S. jail population. Some 60 percent of federal drug offenders received mandatory minimum sentences last year, and a third of those were booked for 10 years or longer, according to the American Civil Liberties Union.

Prosecutors can also wield mandatory minimums as a proactive weapon, invoking them as a threat to encourage defendants to plead guilty and cooperate instead of fighting the charges.

Originally conceived in the1970s and ’80sas a deterrent to drug crimes, mandatory minimums may have exceeded their usefulness. The country’s high incarceration rate has provoked concern from Americans across the political spectrum, with liberals worried about the racial discrepancies in how the laws are enforced, and conservatives worried about the steep financial cost of jailing so many nonviolent prisoners.

Americans’ views on drugs are also changing, as several states have moved to legalize marijuana use, and some polls show majorities in favor decriminalizing and regulating the drug just like alcohol or tobacco.

The Justice Safety Valve Act would address some of these concerns by giving judges discretion to hand out lighter sentences if they feel the crime isn’t severe. This approach would restore some of the “checks and balances” that were initially built in to the American legal system, said Berman.

“Just because the prosecutor is convinced you are a terrible SOB, that shouldn’t be enough,” said Berman. “They have to prove it to a jury and also convince a judge that the extreme sentence is appropriate. Mandatory minimums distort the system because they put this incredible power in the hands of the prosecutors.”

The bill enjoys some support in both parties; Kentucky Republican Sen. Rand Paul and Vermont Democratic Sen. Patrick Leahy co-sponsored it in the Senate, and Virginia Democratic Rep. Robert C. Scott and Kentucky Republican Rep. Thomas Massie co-sponsored it in the House of Representatives.

In theory, President Obama supports reforming mandatory minimums. As a senator, he expressed opposition to these laws, and during his first term as president, he signed legislation that reduced sentences relating to crack cocaine.

He has not yet promised to sign JSVA, however, and has generally been a more forceful proponent of government power now that he occupies the White House.

Berman described this attitude as “When someone else uses a power, I can see how they would misuse it, but now that I have the power, why would I want to give that up?”

Since the bill’s biggest obstacle is arguably indifference — the issue just doesn’t often grab the political spotlight — Obama could vastly improve the bill’s odds of passage by adding his vocal support.

Harlan Protass, a defense attorney with the firm Clayman & Rosenberg who has written about sentencing reform, said JSVA would make a worthy, though imperfect, improvement to current laws.

“The Justice Safety Valve Act is a step in the right direction,” he wrote in an email to The DC News Foundation. “It would shift some power back to judges to consider more traditional sentencing factors when prosecutors decide to charge a crime carrying a mandatory minimum.  But it’s not a panacea because federal sentencing guidelines still exert a gravitational pull, and they are often extraordinarily harsh.”

The best example of the injustice of mandatory minimums has long been Weldon Angelos, who was accused and convicted in 2004 of selling marijuana while carrying a firearm. Even though Angelos had no prior criminal record, Judge Paul Cassell felt the law gave him no choice but to impose a 55-year sentence. Cassell called the sentence “unjust, cruel, and irrational,” and begged then-President Bush to issue a pardon.

Angelos never received a pardon, and the Supreme Court declined to hear his case.

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