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Federal Sentencing Reform - the SAFE Justice Act

“We cannot allow our criminal justice system to remain on its current trajectory. . .[i]t’s not only fiscally unsustainable, but morally irresponsible.”[1]

Recently, President Obama became the first United States President to visit a prison while Commander in Chief. One of his remaining domestic policy goals is sentencing reform. And, for good reason: the nation’s prison population is out of control at 2.2 million people and costs the federal government $80 billion a year.[2]

On the horizon is the SAFE[3] Justice Act – a bipartisan bill introduced by Representatives Jim Sensenbrenner, a Republican from Wisconsin, and Bobby Scott, a Democrat from Virginia. The bill is receiving additional firepower from two unlikely bedfellows: the ACLU and the Koch brothers.

Congressmen Sensenbrenner and Scott spent two years investigating the problems of our criminal justice system before introducing this bill. As part of their research, they discovered potential solutions by looking at states that reduced prison populations, recidivism, and costs. As a result, the SAFE Justice Act proposes the following:

Limit the Application of Mandatory Minimum Sentences for Drug Offenses
Prime culprits for prison overcrowding and unfair sentences are those with drug convictions. Far too often, mandatory minimum sentences are just that – mandatory. The SAFE Justice Act would give discretionary power to judges to give probation to low-level offenders with a relatively clean criminal history. At the same time, the Act would still keep mandatory sentences in place for high-level offenders – organizers and leaders of criminal activity involving at least five people.

Discretionary Sentencing for Drug and Gun Offenses Based on Special Circumstances
Under this provision, judges would be able to sentence below the mandatory minimum sentence for certain drug offenses and for certain gun offenses occurring during drug offenses where special circumstances are present. These circumstances include a person committing the crime because of: mental illness; substance abuse; financial, or emotional, distress; trauma resulting from serving our country; and distress caused by psychological abuse or domestic violence.

Fix “Stacking”
Multiple gun possession/use offenses in the same indictment cannot be “stacked” under 18 U.S.C. § 924(c).

Earned Time Credit, Good Time, and Compassionate Release
For prisoners serving sentences for most offenses, they would have the ability to earn up to ten days of time credit for every thirty days of rehabilitative programming they complete while in prison. Good time credit would be adjusted to a possible fifty-four days per year compared to forty-seven days currently. The Act would also allow for compassionate release requests for prisoners who have children that have significant medical needs or are at risk of being placed in foster care. Additional compassionate requests could be made for prisoners at least sixty years old with extraordinary health conditions.

The ACT would require judges to receive cost analyses prior to sentencing. It would also require federal agencies to regularly report on relevant statistics, such as recidivism rates and prison populations.

The stories of unfair prison sentences are endless. The costs are astronomical. For so-called justice to be served, federal sentencing reform is a necessity, not a desire. The SAFE Justice Act is a good start. For full text of the bill, click here. To track it, click here.

Robert H. Ambrose is a criminal defense attorney in Minneapolis. He, along with many others, believes sentencing reform in the United States is beyond overdue. The National Trial Lawyers Organization named Attorney Ambrose a Top 40 Under 40 trial lawyer in 2014 and 2015.

[1] House of Representatives, Jim Sensenbrenner (R – Wis.).

[2] Juliet Eilperin, Obama tells NAACP that justice reform is long overdue, Wash Post, (July 14, 2015).

[3] SAFE = Safe, Accountable, Fair and Effective.

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