UACDL Expands Its Lobbying Efforts to Federal Legislation

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1 UACDL Expands Its Lobbying Efforts to Federal Legislation The recent surge in criminal justice reform nationally has finally reached Congress consciousness as evidenced by several pending bills that seek to reform federal sentencing. Several UACDL members are playing a role in this reform effort. Principally, Benji McMurray of the Utah Federal Defender Office recently returned to the office after a spending over a year in Washington, D.C. working for the Senate on federal sentencing matters. He has been instrumental in helping to form bipartisan support to reduce many mandatory minimum sentences and to implement evidence-based practices into the federal system. He has drafted below a summary of two reform bills pending before Congress that appear to have a good chance of passage. Other UACDL members are lobbying Congress to enact these reforms. Brett Tolman of Ray, Quinney and Nebeker has been involved in several national groups that seek drastic changes to the federal sentencing scheme. In particular, he has encouraged political conservatives to recognize criminal justice reform as sound public policy and good government. He has also worked as a lobbyist before Congress to promote evidence-based research and smarter sentencing. Finally, UACDL Board Member and Legislative Committee Chair, Steve Burton, spent two days in Washington, D.C., lobbying the Utah Congressional Delegation to pass federal sentencing reform. A reform advocacy group paid the entire cost of the trip. Steve informed those he met that he represented UACDL. His trip gave the organization some exposure that will hopefully increase UACDL s ability to promote change on a national level. Steve describes his trip below. Federal Legislation and the Prospect of Sentencing Reform By Benji McMurray, Utah Federal Defender Office 1 After decades of long prison sentences and an exploding prison population, it is now uncontroversial to say that our federal criminal justice system needs reform. 2 But while there is growing consensus that something must be changed, there remains disagreement about what those changes should look like. Some legislators favor front-end sentencing reform. Others favor back-end prison reform. And a growing majority supports both concepts. President Obama has been a vocal supporter of sentencing reform and is making it one of his top legislative priorities. With increasing demands that Congress enact significant, meaningful reform, both the House and the Senate are considering bipartisan sentencing reform bills. Advocates around the country are cautiously optimistic that a reform package will be signed into law in the first part of next year. 1 Editor s Note: Benji recently returned to the Federal Defender Office after serving for the previously year as counsel to the U.S. Senate on federal sentencing issues. 2 For example, watch the short statement by House Judiciary Committee Chairman Bob Goodlatte (R-VA) at

2 S The Sentencing Reform and Corrections Act S. 2123, the Sentencing Reform and Corrections Act ( SRACA ), combines both sentencing and prison reform. The bill was reported out of the Senate Judiciary Committee on a vote of 15-5 and can now be taken up by the full Senate. Here is a summary of its key provisions: Title I Sentencing Reform Sec.101. Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies Narrows and expands the applicability of recidivist enhancements under the Controlled Substances Act (also known as 851 enhancements). o Limits applicability to prior serious drug felony under 924(e)(2)(A). o Expands applicability to prior serious violent felony under 3559(c)(2)(F). o To be serious conviction, offender must have served more than a year in prison. Reduces recidivist enhancements from 20 to 15 and life to 25; does not change 10-year enhancement. Applies retroactively. Sec Broadening of Existing Safety Valve. Expands existing safety valve to offenders with 4 criminal history points. Excludes offenders with 2-point convictions for drug trafficking or a crime of violence or any 3-point felony conviction. Authorizes a court to waive these criminal history requirements in cases where the exclusion substantially over-represents the seriousness of the defendant s criminal history or the likelihood that he will commit other crimes, unless the defendant has a prior conviction for a serious drug felony or serious violent felony. Does not apply retroactively. Sec Limitation on Applicability of the 10-year Mandatory Minimum Known as a second tier safety valve, this provision allows courts to sentence offenders facing a 10-year mandatory minimum to apply a 5-year mandatory minimum if defendant meets the current safety valve criteria with some modifications (use of a firearm, causing injury, safety valve debrief, etc.). With respect to criminal history, defendants with any number of points can qualify. However, offenders with a prior conviction for serious drug felony or serious violent felony are excluded. With respect to role in the offense, besides those who played a leadership role in the offense, this provision is unavailable to offenders who:

3 o exercise[ed] substantial authority or control over the criminal activity of a criminal organization, regardless of whether the defendant was a member of such organization; o act[ed] as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer; or o Sold drugs to or with a minor. This section does not apply retroactively. Sec Clarification of 18 U.S.C. 924(c) Expands the recidivist enhancement in 924(c) to offenders who were previously convicted by a state court for a crime of violence that involved a firearm. Reduces the recidivist enhancement from 25 to 15 years. Applies the recidivist enhancement only to convictions that were final prior to commission of the new offense (the Weldon Angelos problem). Applies retroactively. Sec Amendment to Certain Penalties for Certain Firearm Offenses and Armed Career Criminal Provision Increases the statutory maximum for firearm possession from 10 to 15 years. Reduces the mandatory minimum for ACCA offenders (those who possess a firearm after 3 prior violent felonies or drug trafficking convictions) from 15 to 10 years in prison. This section applies retroactively. Sec Application of Fair Sentencing Act. Applies the crack reductions in the 2010 Fair Sentencing Act retroactively. Sec Mandatory Minimum Sentences for Domestic Violence Offenses. Increases the statutory maximum for 18 U.S.C (Interstate Domestic Violence). Imposes a 10-year mandatory minimum for offenders who cause the death of the victim. Sec Minimum Term of Imprisonment for Certain Acts Relating to the Provision of Controlled Goods or Services to Terrorists or Proliferators of Weapons of Mass Destruction. Imposes 5-year mandatory minimum for offenders who willfully violate 50 U.S.C by providing controlled goods and services to terrorists, foreign nations developing weapons of mass destruction, or countries subject to an arms embargo. Sec Inventory of Federal Criminal Offenses This is the crime inventory provision in Section 7 of the Smarter Sentencing Act. Title II. CORRECTIONS Act

4 The majority of Title II is the CORRECTIONS Act (S. 467), which requires the Bureau of Prisons ( BOP ) to expand the availability of evidence based programs to all inmates. BOP is directed to develop a risk assessment system that will classify all inmates based on risk of recidivism. Inmates will then be given incentives for participating in rehabilitative programming. Low risk offenders earn 10 days of credit for every 30 days in programming, and medium risk offenders earn 5 days of credit for every 30 days in programming. Although high risk offenders cannot seek early release, the bill directs the BOP to rely on dynamic risk factors, changeable characteristics that will hopefully allow inmates to reduce their risk assessment level through programming. However, the bill lists several types of offenses that will preclude an inmate from getting credit. Additionally, Title II does the following: Sec Eric Williams Correctional Officer Protection Act Allows BOP officers to use pepper spray in prison. Sec Parole for Juveniles Allows juvenile offenders to seek a reduced sentence after serving 20 years in prison. Sec Compassionate Release Initiative Authorizes release of inmates who are: (a) over 60 and served 2/3 of their sentence; or, (b) terminally ill. Sec Juvenile Sealing and Expungement Sec Juvenile Solitary Confinement Bans solitary confinement of juveniles, with narrowly defined exceptions. Sec Ensuring Accuracy in the FBI Background Check System Provides for the correction of incomplete and inaccurate criminal history records. H.R Sentencing Reform Act of 2015 In contrast to the Senate bill, which includes both front- and back-end reforms, the H.R. 3713, the Sentencing Reform Act of 2015 ( SRA ), includes only sentencing reform. The SRA looks a lot like Title I of SRACA with the following changes: It adds a mandatory sentencing enhancement for offenders who sell heroin mixed with fentanyl. It limits retroactivity for drug offenders by excluding offenders who have a serious violent felony that receives 3 criminal history points; 924(c) and ACCA retroactivity excludes all offenders with a serious violent felony. It does not include sections of the Senate bill (new mandatory minimums, federal crime inventory). It requires the U.S. Sentencing Commission to issue a report to Congress on mandatory minimums and expresses the sense of Congress that criminal justice reform should address mental health needs.

5 Title II of SRACA (prison reform) is omitted. This bipartisan bill was reported out of the House Judiciary Committee on a voice vote on November 18, Concluding Thoughts What are the chances that Congress will really get something done? It may seem hard to believe, but chances are good that some variation of these proposals will be signed into law. The bills are bipartisan and enjoy support from the chair and ranking members of the judiciary committees in both the House and the Senate. The bills have made it out of committee and can now be considered by the full House and Senate. Political pressure is mounting for Congress to do something quickly before the presidential election complicates the issue. Chances are good that Congress will pass a criminal justice reform bill by spring. Will the bill ultimately include prison reform? The biggest obstacle to passage is that the House and Senate must pass identical bills, and right now the House and Senate bills have important differences. The most important difference is the omission of prison reform in the House bill. Because inclusion of both frontend a back-end reform was an important part of the compromise in the Senate, it is unlikely that a sentencing reform bill will make it to the President s desk without including prison reform. (Just as it is unlikely that a prison reform bill could pass without sentencing reform.) The omission of prison reform in the House bill may signal substantive disagreement with the Senate version, or it may just reflect Chairman Goodlatte s stated preference for piecemeal rather than comprehensive legislation. He has said he will mark up a prison reform bill soon, but at this point it is unknown whether he will mark up a House analogue to Title II or something completely new. He could also markup Congressman Jason Chaffetz s (R-UT) H.R. 759, the Federal Prison Reform Act, which is similar, but not identical, to Title II of SRACA. What else could change? As the House and Senate navigate the divide between Congressman Goodlatte s preference for piecemeal reform and the Senate s preference for comprehensive reform, another question is whether other reforms might be needed to get enough votes to pass. For example, although he has previously recognized the problems with mandatory minimum sentences, 3 Senator Hatch voted against SRACA in Committee because it did not include mens rea reform. And in the House, the markup of the SRA included several criminal justice reform bills that could be asserted as the price for supporting the final package. 4 It is conceivable that 3 Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev (1993). 4 The following bills were reported at the November 18 markup by a voice vote:

6 these or other provisions could be added to the final package, even though they may have little to do with sentencing or prison reform. On the other hand, some are critical of some things the bill currently does. For example, Senators Ted Cruz (R-TX) and David Purdue (R-GA) both previously cosponsored sentencing reform bills (the Smarter Sentencing Act), but they voted against SRACA because of the reductions for ACCA and 924(c) offenders. Others, like Congressman Bobby Scott (D-VA) and Families Against Mandatory Minimums, have criticized the new mandatory minimums in the Senate bill and the expansion of recidivist liability in both bills. In the end, the call for reform is strong. While there remain some differences that will have to be resolved, the bipartisan support in Congress creates a good opportunity to pass a bill within the next few months. Legislative Committee Chair Lobbies Congress to Pass Sentencing Reform By Steve Burton, UACDL Legislative Committee Chair Significant progress is being made toward federal sentencing reform recently. During the first week in December, Steve Burton, UACDL s Legislative Committee Chair, travelled to Washington D.C. to participate in The Leadership Conference on Civil and Human Rights. The Drug Policy Alliance paid to have Steve and other representatives from Utah take part in the conference and meet with legislators to push for more common sense sentencing laws. During the one-day conference, Steve met with Senator Mike Lee and Representative Jason Chaffetz to show support for the Sentencing Reform and Corrections Act of Both lawmakers were very supportive of the bill. Steve also met with staff from the offices of Senator Orrin Hatch and Representatives Rob Bishop and Mia Love. The proposed bill would reduce various mandatory minimum sentences for drug offenses and some firearms violations. It would also make the Fair Sentencing Act of 2010 retroactive, expand the federal safety valve exception for drug mandatory minimum sentences, and allow many federal prisoners to earn time credits for completing rehabilitative programs in prison. The law would apply retroactively, affecting approximately 10,000 current inmates and any relevant future sentences. The Senate Judiciary Committee passed the bill in October and it will likely receive a vote in the full Senate in January or February of Meetings with the Utah Congressional Delegation were very positive. Senator Hatch voted against the bill in committee, but his office met with the Utah lobbyist group for an extended amount of time to H.R. 4003, the Regulatory Reporting Act of 2015, requires federal agencies to report to provide details about all criminal regulations they enforce. H.R. 4023, Clean up the Code Act of 2015, repeals several misdemeanor offenses (transporting water hyacinths; wrongful application of an auto theft prevention decal; misuse of 4-H club emblem, Swiss Confederation Coat of Arms, Smokey Bear, Woodsy Owl, or The Golden Eagle Insignia ; transportation of dentures; and unlawful receipt of federal compensation after marriage). H.R. 4001, Fix the Footnotes Act of 2015, and H.R. 2830, make technical corrections.

7 discuss the Senator s reservations. During the meetings with the various legislators and their offices, Steve was the only criminal defense attorney in the group and was able to speak on the vast differences between state and federal sentences and compare the proposed federal bill to Utah s recent criminal justice reform bill. Steve also conveyed UACDL s unified voice for evidence based practices and smart approaches to reducing prison populations. Although the Utah legislators responded very positively to the lobbying efforts, the true test will be in January or February when the bill will face its next hurdle. We ask all UACDL members to contact their individual Senator or Representative to express the need for sentencing reform and ask for an opportunity to speak with members of their staff who are dealing with this issue.

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