Members of the US Senate are currently considering a package of three sentencing reform bills already approved on a bipartisan basis by the Senate Judiciary Committee. Senate passage of The First Step Implementation Act (S. 1014), the Prohibiting Punishment of Acquitted Conduct Act (S. 601), and the Covid-19 Safer Detention Act (S. 312) would make meaningful if incremental, progress toward a more just criminal legal system. Sentencing of those who have been found guilty of wrong-doing must be based on values that honor human dignity, sanctity, and the allowance for redemption. However, our system for sentencing those convicted of crimes has for too long borne no relation to these values, resulting in prisons that are heavily populated by Black, Indigenous, and other people of color.

Over the last 30 years, the United States has come to rely on its criminal justice system and lengthy prison terms more than any other nation.  With just 5% of the world’s population, the U.S. holds nearly a quarter of the world’s prisoners, including one-third of all women incarcerated worldwide.

The ACLU has reported [1] that the United States has the highest incarceration rate in the world. In 2019, approximately 2.1 million people were in adult correctional jails and prisons around the United States. Many thousands of people, disproportionately people of color, are cycled in and out of state jails or prisons every day.

Extreme sentencing laws and practices are keeping people in prisons for far longer than ever before. The result is that more people are spending more of their lives in prison than at any point in U.S. history. Over-reliance on incarceration is fiscally unsustainable and has imposed a burdensome human toll and a disparate impact on African American and Latino persons and communities.

The federal prison population has increased nearly 800% since 1980 and more than doubled since 1994, with spending up 1700% during that time, and federal prisons are currently operating at 131% of capacity. This is due to a significant degree to the proliferation of mandatory minimum sentences.  Nearly half of all federal prisoners are serving sentences for nonviolent drug crimes. [2]

There is consensus across the political spectrum that our criminal justice system is out of balance and in need of significant reform. Many states have enacted bipartisan “smart-on-crime” reforms that achieve significant cost savings and reduce crime. Now, it is time for these reforms to be made at the federal level.

 

Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act of 2021 (S.79)

Introduced by Sen. Corey Booker (D-NJ) on January 28, 2021, this bipartisan legislation that seeks to eliminate the disparity in sentencing for cocaine offenses, established in 1986 when Congress passed the Anti-Drug Abuse Act–a major contributor to mass incarceration–and apply retroactively to those already convicted or sentenced. Congress set a 100:1 disparity, sentencing crack cocaine offenses at a higher level even though the drugs are nearly identical chemically and comparable in physiological and psychoactive effects. Although it did not address the disparity fully, Congress passed the bipartisan Fair Sentencing Act of 2010, which reduced the disparity to 18:1 for pending and future cases only. The change was not made retroactive until the bipartisan First Step Act of 2018.

Prospective Impact: The Sentencing Commission [3] estimates that approximately 827 offenders each year would benefit from this section of the bill.2 The current average sentence for those offenders is 74 months. The estimated new sentence for those offenders would be 43 months.

Retroactive Impact: Approximately 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on this section of the bill. The Commission estimates that up to 7,644 offenders would receive a reduction in their sentence. [3] The current average sentence for these offenders is 173 months. The estimated new sentence for these offenders would be 100 months

 

First Step Implementation Act of 2021 (S. 1014)

Introduced by Sen. Richard Durbin (D-IL) on March 25, 2021, this bill would further the goals of the First Step Act of 2018 (FSA) by correcting unfairness that has resulted in implementation and interpretation errors that contravene the spirit of the FSA by:

• Allowing courts to apply the FSA’s sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
• Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
• Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
• Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
• Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

 

Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601)

Introduced by Sen. Richard Durbin (D-IL) on March 4, 2021, this bill would end the perverse practice under which federal courts consider acquitted or dismissed charges as aggravating factors when imposing sentences for convictions. It would do so by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

 

Covid-19 Safer Detention Act of 2021 (S. 312)

Introduced by Sen. Richard Durbin (D-IL) on February 12, 2021, this bill would clarify and expand the eligibility for the Elderly Home Detention Pilot Program (introduced by the FSA), including explicitly naming COVID-19 vulnerability as a basis for compassionate release under this program. It would do so by:

• Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress);
• Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least two-thirds of their term of imprisonment;
• Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
• Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
• Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

There are too many people in prison serving unnecessarily long sentences.  These people are not a threat to the public and serving inhumanely long sentences actually reduces their chances of becoming productive law-abiding citizens.  We must support shorter sentences when appropriate.  These bills are not only appropriate, but also imperative.

Events of the past few years have illuminated the systemic inequalities in our country’s criminal legal system. At NETWORK, we cannot continue to tolerate racial profiling, police brutality, the loss of another generation to mass incarceration, or the perpetuation of poverty. As we Build Anew, we affirm the truth that every person is entitled to dignity and equal justice under law. It is time for Congress to act and take a firm stance against institutional racism embedded within the criminal legal system bypassing the First Step Implementation Act, the Prohibiting Punishment of Acquitted Conduct Act, and the Covid-19 Safer Detention Act.

[1] Sentencing Reform | American Civil Liberties Union (aclu.org)

[2] Federal Sentencing Reform (americanbar.org)

[3] Prison and Sentencing Impact Assessment for the EQUAL Act of 2021 (ussc.gov)