WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and U.S. Senator Mike Lee (R-UT) today introduced two pieces of bipartisan criminal justice reform legislation—the Smarter Sentencing Act, to modernize federal drug sentencing policies, and the Smarter Pretrial Detention for Drug Charges Act, to provide judges additional flexibility when determining if pretrial detention is appropriate for those accused of nonviolent drug offenses. The Senators introduced these bipartisan bills as federal prison overcrowding continues to threaten the safety of officers and inmates and strain budgets for law enforcement and crime prevention.
“Outdated policies stemming from the failed ‘War on Drugs’ continue to impose lengthy, one-size-fits-all sentences for many nonviolent drug offenses. It’s costly, overcrowds our prisons, and strains budgets at the expense of other important law enforcement and crime prevention programs,” Durbin said. “Our bipartisan bills will modernize these misguided and expensive sentencing laws and allow many nonviolent drug offenders to return to their communities more quickly, without threatening public safety. I thank my colleague Senator Lee for his longtime partnership in this effort.”
“These bills protect the Fifth Amendment right of all Americans against unjust imprisonment and keep tax dollars where they’re most efficient,” said Lee. “Judges need more discretion to consider each defendant’s individual and unique circumstances, and our prisons need to be able to focus resources on the most dangerous criminals. Our bipartisan legislation will protect Americans’ constitutional rights and eliminate federal waste.”
About the Smarter Sentencing Act
Over half of federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill provides federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.
The bill does not repeal any mandatory minimum sentence, nor does it lower any maximum sentence. Rather, its approach allows judges to dole out the harshest penalties where they are warranted, while allowing judges to moderate sentences based on individual circumstances. Additionally, this bill only applies to nonviolent offenses.
Durbin and Lee first introduced the Smarter Sentencing Act in 2013. Since then, several important reforms first proposed in the bill were included in the landmark First Step Act, enacted into law in 2018. The central remaining sentencing reform is reducing mandatory minimum penalties for certain nonviolent drug offenses.
The bill is cosponsored by Senators Cory Booker (D-NJ), Brian Schatz (D-HI), Angus King (I-ME), Tim Kaine (D-VA), Elizabeth Warren (D-MA), Ed Markey (D-MA), Richard Blumenthal (D-CT), and Bernie Sanders (I-VT).
The following organizations support the Smarter Sentencing Act: National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, Association of Prosecuting Attorneys.
Bill text is available here.
About the Smarter Pretrial Detention for Drug Charges Act
The Senators introduced this bill as pretrial detention rates in the federal system are increasing across all demographic groups. By eliminating the blanket presumption of pretrial detention for most federal drug charges, a tailored, individualized assessment can be conducted for each defendant on a case-by-case basis.
Under the Bail Reform Act of 1984, which governs federal pretrial detention, the release of defendants is generally presumed unless a judge finds a risk of flight or potential danger to the community. This is the appropriate standard for defendants due to the presumption of innocence.
However, this release presumption is reversed for certain criminal charges, creating a presumption of detention without regard to the circumstances and background of the accused. One example of these “presumption” charges is any drug offense that is punishable by 10 years’ imprisonment or more (the vast majority of federal drug offenses). This presumption, a relic of an antiquated and failed approach to combatting the last drug epidemic, treats nonviolent drug offenses like terrorism, hijacking, and other serious violent crimes. According to the Probation and Pretrial Services Office of the Administrative Office of the U.S. Courts, this presumption has “become an almost de facto detention order for almost half of all federal cases.”
A 2017 Probation and Pretrial Services Office study found that this presumption does not correctly identify which defendants are higher risk. For example, it found no significant difference in rates of failures to appear between presumption and non-presumption cases, and presumption cases had fewer violent rearrests than non-presumption cases. The study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.”
Additionally, racial disparities in pretrial release rates are evident in drug cases, with white defendants more likely to receive pretrial release than Black defendants. As a result of the presumption, defendants charged with drug offenses are detained in two-thirds of cases. Pretrial supervision only costs $11 per day, compared to $92 per day for pretrial detention, per detainee.
The bill is cosponsored by Senator Chris Coons (D-DE).
The following organizations support the Smarter Pretrial Detention for Drug Charges Act: National Association of Criminal Defense Lawyers, Due Process Institute, Tzedek Association, Drug Policy Alliance, American Civil Liberties Union, Families Against Mandatory Minimums, Dream.org, Right on Crime, Black Public Defender Association.
Bill text is available here.
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