With Republicans set to have control of both chambers of Congress, there has been no shortage of talk of leaving the dysfunction of the 113th Congress behind and focusing on areas of compromise in the coming year.
One possible area (which is off most political radars) is overhauling the prison and sentencing systems, an issue on which Sens. Rand Paul, R-Ky.; Cory Booker, D-N.J.; Richard J. Durbin, D-Ill., and Mike Lee, R-Utah, agree. They'll all still be around in the 114th Congress.
“I am so proud that this issue cuts across political sides, that we have Democrats and Republicans, red states and blue states, all beginning to say we can do better,” Booker said during a Dec. 9 floor speech. "If we have an injustice in our midst with a legal system that is so far away from the justice system to which we should aspire, we have to do better."
Booker said young people convicted of nonviolent felonies — often after taking a plea deal from a prosecutor and avoiding trial — face significant obstacles trying to find employment and access to federal programs such as Pell Grants, federal loans and public housing. It is a social problem, he said, but also an economic problem. The United States, with 5 percent of the world's population, has 25 percent of its prisoners. Booker has teamed up with Paul on their Record Expungement Designed to Enhance Employment legislation, which they introduced in July. The REDEEM Act would wipe the record of many juveniles convicted of drug crimes. It would also lift a federal ban on welfare benefits for ex-prisoners, and create safeguards for juveniles convicted of nonviolent crimes.
Addressing the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights on Dec. 8, Durbin cited the outrage surrounding the recent deaths of black men in Ferguson, Mo., and Staten Island, N.Y., at the hands of police as providing an impetus to act.
“When a significant part of the American family is disenfranchised and does not trust the police or the criminal justice system, there is more work to do,” Durbin said in his prepared remarks.
The offices of both Durbin and Lee indicated their bosses planned to continue pushing for passage of legislation the two introduced last year, the Smarter Sentencing Act.
“When we talk about good bipartisan bills that have a lot of support, this is definitely one of the top bills that comes up,” said Christina Mulka, Durbin’s deputy communications director.
“I think many people in the country earlier this year were excited to see these things pass, and expected them to pass, and hoped they would pass,” said Benji McMurray, a special counsel for Lee. “I would note too, for what it’s worth, that based on statements by the president and his now outgoing attorney general, I think the policies embodied by the Smarter Sentencing Act certainly capture the essence of the president’s values.”
The federal prison system contains just more than 213,000 of the 2.4 million prisoners nationwide, according to the Federal Bureau of Prisons. That’s a 790 percent increase from 1980, and most new cases are for drug-related charges, according to a report issued in April from the Federation of American Scientists.
The average yearly cost of incarceration is nearly $30,000 per inmate, and the bureau's budget is nearly $6.5 billion a year, the report said. A September Congressional Budget Office report indicated the Smarter Sentencing Act would save more than $4.36 billion over 10 years.
Current sentencing policies are a result of a trend started in the 1980s that emphasized strict punishments that took away judges' discretion.
“These laws are one-size-fits-all justice,” Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said at a November panel discussion on sentencing changes. “When you keep putting people in prisons for a very long time, guess what happens? Prisons fill up.”
That panel was a sign of the bipartisan nature of the issue. Moderated by the Charles Koch Institute, it featured panelists from the American Civil Liberties Union, FAMM, the Texas Public Policy Foundation and the Heritage Foundation. It was noted that mandatory minimums disproportionately affect minority populations who, once they leave the prison system, carry that record with them.
There has been some success for advocates of sentencing overhauls in the past, such as with the 2010 Fair Sentencing Act that tightened the gap on sentencing disparity for crack versus cocaine. Much of the progress made has been at the state level.
New York, New Jersey and Texas all changed their sentencing laws, Booker said on the floor, while at the same time saw a drop in crime rates. New York has seen a 24 percent drop in its prison population since the late 1990s due to overhauls to its Rockefeller-era drug, laws while also reducing its crime rate by half.
“Right now in America there are states doing incredible things, incredible things, to change away this reality,” Booker said. "I am proud of what is going on in the Senate with many of my colleagues. I came and joined this body when people pulled together to begin legislation such as the Smarter Sentencing Act or, more recently, the REDEEM Act I did in partnership with Rand Paul."