THE BLOG
09/09/2014 04:46 pm ET Updated Nov 09, 2014

In a Do-Nothing Year, Here's One Thing Congress Can Actually Do

Earlier this year, it looked like criminal justice reform might be the last bipartisan issue in Washington.

In a town where Republicans and Democrats cannot agree on light bulbs or cafeteria utensils, legislation to address overcrowding in the federal prison system had the backing of both President Obama and Senator Ted Cruz.

In a do-nothing Congress, sentencing reform was a can-do issue. Two bills -- one to reduce mandatory penalties for nonviolent drug offenses and another to provide for early release -- were sent to the Senate floor with strong bipartisan support. Votes were expected on the former -- the Smarter Sentencing Act -- no later than early summer.

But faster than you can say "Tip and the Gipper," the opportunity for bipartisanship seemed to slip away.

Given severe federal prison overcrowding -- some facilities are operating at more than 50 percent over capacity -- other actors have taken steps to address these problems. This summer, the U.S. Sentencing Commission voted to cut sentences an average of two years for as many as 50,000 drug offenders. That followed an announcement that the Obama administration would consider clemency for thousands of people imprisoned for lengthy sentences under outdated laws. And last year, Attorney General Holder called for changes in the way charges are brought in nonviolent drug cases.

Taken together, these moves represent a substantial shift in federal drug sentencing policy. But they are no substitute for Congressional action.

To understand why, consider the scale of the problem.

Since the launch of the war on drugs, the number of federal drug prisoners has soared. In 1980, there were about 4,700 people serving time for a federal drug offense. Today, there are about 100,000. In the past two decades, the annual number of drug trafficking cases has increased nearly 80 percent. In new federal cases involving cocaine or marijuana, four out of five defendants are black or Hispanic.

Recent reforms barely begin to address these trends.

Moves announced by the Obama administration, while commendable, are relatively modest and do not make systemic change. Clemency, by its nature, is a slow and incremental process. Each petition must be carefully scrutinized, and applicants have to meet six strict criteria to be eligible for relief.

Changes in federal charging practices are also circumscribed. Despite Holder's bold leadership, charging decisions remain in the discretion of individual prosecutors. Even if these reforms are expanded, they could easily be reversed by a future administration.

Reforms by the Sentencing Commission -- assuming they are not overturned by Congress -- would have a greater impact, but the effect on overall prison populations would be limited. Reductions would apply in only a subset of federal cases; about half of previously sentenced drug offenders would not benefit. Moreover, these reforms will not happen automatically. District courts would be required to review every case, and legal assistance is not guaranteed.

Most crucially, neither the Obama administration nor the Sentencing Commission has jurisdiction over the primary cause of swelling prison populations: harsh mandatory minimum sentences.

Enacted by Congress at the height of the 1980s drug panic, mandatory minimum penalties require long prison terms for drug offenses regardless of the circumstances in the case. Thanks to mandatory minimums, some people must spend decades behind bars even though they barely profited from a drug deal and were never engaged in violent behavior. Mandatory penalties set a hard floor in sentencing that even judges cannot escape.

Severe mandatory minimums are a key reason why so many Americans are locked up in federal prisons, and only Congress can amend them. After announcing the Sentencing Commission's reforms this summer, Judge Patti Saris said "only Congress can make the more fundamental changes needed to fix the disparities and problems the Commission has found some mandatory penalties to cause."

The Smarter Sentencing Act -- now pending on the Senate floor -- is the most comprehensive effort to reform mandatory minimum sentencing in a generation. Senator Rand Paul predicted that the measure could pass with support from up to half of his Republican colleagues. After so much promise, it would be a shame to see it wither on the vine.

In a do-nothing year, sentencing reform is a chance for Congress to do something.