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Federal Sentencing Reform of Mandatory Minimum Drug Sentences

As prison overcrowding and costs continue to reach new stratospheres, the push for significant federal sentencing reform on drug offenses is at its peak. The House already introduced the SAFE Justice Act[1] and the Senate should emerge with its bill any day now.[2] The movement is powerfully backed by all parties. Most lawmakers agree we need substantial federal sentencing reform of mandatory minimum drug sentences. President Obama is also making it one of his top domestic policy goals before he leaves office.

But, will it happen? There are at least three hurdles standing in the way of the finish line:

  1. Political Posturing

Although we are fourteen months away from punching the ballot, political debates and rhetoric are already flooding your eyes and ears. Has it ever been popular not to be tough on crime? What politician is going to take the stand that maybe we have been too harsh on criminals? Let’s ease up a bit. Other major issues are at the forefront of most campaigns and few probably want to go out on a limb and expose themselves on the issue of sentencing reform. In the near future, incumbent candidates will face the additional hazard of voting on a sentencing reform bill and publishing their stance for everyone to see.

Hopefully, the intense bipartisan backing of sentencing reform is enough to lift us over this hurdle. The unpopular political view should be to vote against reform. But, the mirage of a decreasing crime rate may fuel talking points against reform.

  1. The Mirage of a Decreasing Crime Rate

For the twelfth straight year, violent crimes and property crimes are down according to the FBI’s most recent collective estimates. If accurate, those crimes are obviously trending in the right direction. Making it even tougher for politicians to take a so-called soft stance on crime.

The incredible rise in the federal prison population, however, is squarely tied to drug offenses and the law making behind them. Despite the increasingly strict mandatory minimum drug sentences, drug use and supply continue to rise. With such strong evidence supporting the reasons behind federal sentencing reform, why would anyone argue against it? Two former federal prosecutors recently made their case here.

  1. Changing of the Guard

What if sentencing reform fails during Obama’s term? Despite the strong bipartisan push for reform, if it does not happen in the near future, will it happen at all? If it fails before Obama leaves office, the new administration may not want to make it one of its first priorities.

Another change in leadership is happening even sooner than Obama’s presidency. Speaker of the House, John Boehner, is set to retire at the end of next month. As discussed here, the changing of the guard could mean sentencing reform gets placed on the backburner as attention will lean towards picking a new speaker. Boehner backs sentencing reform. In support of the SAFE Justice Act, he said many people in prison “really don’t need to be there.”        

In sum, the best chance for significant sentencing reform of mandatory minimum drug sentences seems to be within the next three to six months. If it does not happen by then, the political landscape may raise the hurdle too high to clear at the moment.

Robert H. Ambrose is a criminal defense lawyer in Minneapolis. He believes federal judges should have abundantly more discretion when sentencing drug offenders. He is admitted to practice law in federal court and was named a Top 40 Under 40 trial lawyer in 2014 and 2015 by the National Trial Lawyers Organization.

[1] A well-backed bipartisan bill intended to reduce the immense prison population while saving the nation money. Attained by giving federal judges more discretion of sentencing mandatory minimum sentences, especially on drug offenses. For a longer discussion of the SAFE Justice Act, read our recent blog post here.

[2] The Senate Judiciary Committee hopes to announce a bill to reduce federal prison overcrowding any day now. For a longer discussion, read the Sentencing Law and Policy’s article here.

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