Before Creating Any More New Crimes, Congress Should Reform The Penalties It Made Decades Ago

Molly Gill Government Affairs Counsel, FAMM
Font Size:

Last summer, House Judiciary Committee Chairman Bob Goodlatte (R-VA) established the House Over-Criminalization Task Force to study the growing concerns about “over-criminalization” (too many crimes) and “over-federalization” (making those crimes federal offenses, instead of letting state authorities handle them).

More than one year and 10 hearings later, here are the takeaways: First, over the last several decades, Congress created new federal crimes at a rate of one per week. Second, those new crimes don’t explain why our federal prison population grew 790 percent between 1980 and today.

According to the Congressional Research Service (CRS), Congress created 439 new federal crimes between 2008 and 2013 (an even faster legislative rate than during the years of Pres. George W. Bush, when Congress created 452 new crimes). The total number of federal crimes is now just shy of 5,000 … we think. Not even CRS knows for sure, because the size of the code makes a complete count nearly impossible.

Congress’s zeal for criminalizing every headline-grabbing incident is troubling, but what kind of trouble has it caused us? At hearing after hearing, task force witnesses ranging from the Heritage Foundation to current and former prosecutors to the National Association of Criminal Defense Lawyers testified that the federal laws responsible for sending the most Americans to prison for the longest amount of time were actually created decades ago. Mandatory minimum drug sentences created 30 years ago, not the thousands of crimes created since then, are the main reason the federal prison population has increased from 25,000 prisoners in 1980 to 215,000 prisoners today.

It turns out we’re not locking up tens of thousands of people in federal prisons for aiming laser pointers at airplanes or distributing animal crush videos (both federal crimes created by Congress since 2008 — and you really don’t want to Google the latter). In fact, only a fraction of federal criminal statutes are used regularly. The ones used most are those that punish the sale or production of illegal drugs.

Half of all current federal prisoners are drug offenders. One in three people convicted in federal courts annually is a drug offender. Overwhelmingly, they have little or no prior record, were nonviolent, didn’t use or possess guns, and were low-level street dealers, not kingpins. Yet they regularly serve five-, 10-, and 20-year mandatory prison sentences. These one-size-fits-all sentences are triggered based solely on the type and amount of drugs involved. They apply automatically, regardless of the offender’s role, profit, motive, criminal history, addiction, or amenability to treatment.

Lengthy incarceration of low-level, nonviolent drug offenders produces strain on the system and drains it of funds that could instead be spent on crime prevention, victim services, or better policing. The federal prison system is at 135 percent of its capacity (and growing) and consumes more than a quarter of all Department of Justice funding.

Which brings us back to the task force that spent over a year studying the U.S. criminal code. Seven of the task force’s 10 members are already supporting a solution to what’s really driving the growth of the federal prison population: the Smarter Sentencing Act. This bipartisan bill, introduced by Reps. Raul Labrador (R-ID) and Bobby Scott (D-VA) in the House and by Senators Mike Lee (R-UT) and Dick Durbin (D-IL) in the Senate, gains cosponsors weekly and has already emerged from Senate Judiciary Committee review. The House version of the bill has not moved through that body’s Judiciary Committee, presumably waiting for the Over-Criminalization Task Force to complete its work.

The time for review and study has passed; the House Judiciary Committee should now advance the Smarter Sentencing Act, and Congress should pass the bill this year. Bipartisan support for the bill extends beyond Congress: supporters include law enforcement, conservative, civil rights, and taxpayer advocate groups from all points on the political spectrum.

By reducing (not eliminating) mandatory minimum drug sentences, the Smarter Sentencing Act would decrease the federal prison population to a manageable level and save $24 billion over the next 20 years, according to the Justice Department. Instead of building more prisons and hiring more guards to supervise more nonviolent drug offenders, the Justice Department could instead use the savings on smarter, more cost-effective law enforcement, victim services, or rehabilitative programs that reduce crime. And the Smarter Sentencing Act is no get-out-of-jail free card – under it, everyone still goes to prison. It is a modest but powerful solution to a problem that will only worsen if Congress does nothing.

We know that even “do-nothing” Congresses are good at creating crimes, but it is our 30 year-old policy of locking up nonviolent, low-level drug offenders for decades that created our current conundrum. Passing the Smarter Sentencing Act is something this Congress can and should do this year – even if it does nothing else.

Molly Gill is a legislative liaison with Families Against Mandatory Minimums