Summary/Abstract

Jeremy Haile, a federal advocacy counsel for The Sentencing Project, reviews current and potential legislation for criminal justice drug policy for incarcerating non violent drug offenders, specifically the Smarter Sentencing Act which would extend the 2010 Fair Sentencing Act

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The Capitol steps might be literally frozen, but inside Congress, we’re seeing a bit of a thaw.

From federal spending bills to farm and nutrition programs, Congress appears poised to pass long-awaited bipartisan legislation this winter.

But before they head out to the campaign trail later this year, lawmakers should take up another measure that enjoys wide bipartisan support: legislation to reform drug sentencing.

In recent months, bold leaders have come together from both parties to craft legislation to reform the way we address federal nonviolent drug offenses. Buttressed by states that have downsized prison populations while continuing to experience crime reductions, cross-aisle alliances in both the House and Senate have sought to scale back the overly punitive and fiscally irresponsible policies of the past.

Last summer, the political odd couple of Democratic Sen. Dick Durbin (Ill.) and Republican Sen. Mike Lee (Utah) introduced the Smarter Sentencing Act to revise drug sentencing laws. The bill would extend the 2010 Fair Sentencing Act — which reduced the cocaine-crack sentencing ratio from 100:1 to 18:1 — retroactively to certain prisoners sentenced under the old law, so they could petition judges and prosecutors for sentence reductions consistent with public safety. Seeking to be smart about the number of nonviolent individuals in federal prisons, it would also reduce inflexible mandatory minimum penalties for drug offenses and give judges discretion to avoid overly harsh sentences.

If there is any issue on which Americans should agree, it is the failure of prisons to provide a rational response to nonviolent drug offenses. Since the launch of the drug war three decades ago, the number of federal prisoners has doubled, and doubled, and more than doubled again. Half of federal inmates are behind bars for a drug offense. A majority are people of color, even though people of all races use and sell drugs at roughly the same rate.

Last week, more than 200,000 people rang in the New Year in a federal prison. Many of these inmates were there not because a judge necessarily thought it was appropriate, but because they were subject to unjust mandatory minimum penalties. This approach has destroyed the lives of countless individuals and families while doing little to reduce crime. In the words of Republican Rep. Spencer Bachus of Alabama, our system of mass incarceration has become “a national disgrace.”

A recent poll by the conservative Right on Crime project found that nearly 80 percent of people in the red state of Texas favor treatment rather than prison for nonviolent drug offenders, with members of the Tea Party most likely to hold that view. The Durbin-Lee bill is supported not only by traditional criminal justice reform advocates, but also by Heritage Action, law enforcement groups from prosecutors to police officers to corrections officials, and even conservative stalwarts Grover Norquist and Ralph Reed.

With so many agreeing on the need for reform, why hasn’t sentencing legislation advanced?

It seems that some lawmakers, both Republican and Democrat, might still be tempted to live in the 1980s, when a nuanced approach to criminal justice policy was thought to be a liability. If so, they should wake up and recognize that the old “tough on crime” days are over. We now have two decades of evidence showing that harsh sentencing policies served to bloat federal prisons while doing little to promote public safety. These policies have actually undermined our ability to increase public safety by consuming the resources needed for crime prevention and programs to reduce recidivism. In state after state, we have seen harsh sentencing policies being scaled back while alternatives to incarceration are being employed. These reforms have created no adverse impacts on public safety.

And in recent months, Attorney General Eric Holder has directed federal prosecutors to change the way they charge nonviolent drug offenses, while President Obama has announced commutations for individuals convicted of crack cocaine offenses. Both announcements were met with bipartisan praise.

Like few other issues, drug sentencing reform is one in which many Americans have already settled on the right policy. We’re now just waiting on Congress to act.

Jeremy Haile is federal advocacy counsel for The Sentencing Project. He previously served for several years as a legislative aide to Rep. Lloyd Doggett (D-Texas).