May 23, 2014

In response to a "Dear Colleagues" letter sent by Senators Grassley, Sessions, and Cornyn on May 12th to their Senate colleagues voicing their opposition to portions of the Smarter Sentencing Act. Human Rights Watch wrote a letter to the authors, detailing our concerns with their opposition and responding to their claims. The text of the letter is below. 

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The Honorable Charles E. Grassley
United States Senate
135 Hart Senate Office Building
Washington, DC 20510

The Honorable Jeff Sessions
United States Senate
326 Russell Senate Office Building
Washington, DC 20510

The Honorable John Cornyn
United States Senate
517 Hart Senate Office Building
Washington, DC 20510

RE: May 12th “Dear Colleague” letter on opposition to the Smarter Sentencing Act

Dear Senators Grassley, Sessions, and Cornyn:

We write with concerns about your May 12th letter to Senate colleagues on your opposition to the Smarter Sentencing Act (SSA), which is awaiting debate and a vote on the Senate floor. We were discouraged to learn of your opposition to the section of the act that reduces certain drug-related mandatory minimum sentences. We detail our concerns with your opposition below.

We first want to note that while we believe that “front end” sentencing reform, including mandatory minimum reform, is indispensable to alleviate prison overcrowding and to restore fairness to sentencing, we appreciate the commitment of Senator Cornyn to address the problem of overcrowding in federal prisons through his co-sponsorship of S.1675, the Recidivism Reduction and Public Safety Act of 2013, as well as Senator Grassley’s co-sponsorship of S.1783, the Federal Prison Reform Act. We appreciate that signatories to your May 12th letter are trying to find ways to address the unsustainable growth of the federal prison population through “back end” reforms, like reducing confinement in exchange for inmate participation in recidivism reduction programming.

However, we are discouraged that your commitment to sentencing reform does not embrace the need to reform current drug-related mandatory minimums. In your May 12th letter, you raise three key concerns. First, you state that “[i]n the federal justice system, mandatory minimums are used almost exclusively for high-level drug traffickers who have trafficked in large quantities of hard drugs.” Second, you claim that people subjected to these mandatory minimums are “not ‘non-violent.’” And finally, you correlate the existence of high mandatory minimums with the national reduction in crime. We address each of these points in turn.

Your letter states that drug-related mandatory minimums “are used almost exclusively for high-level drug traffickers.” Data from the United States Sentencing Commission tells a much different story. According to the Commission, 40 percent of federal drug defendants were couriers or street dealers.[1] In fact, nine out of ten federal drug defendants come from the lower or middle tiers of the drug business.[2] Because mandatory minimums are triggered by the quantity of drug involved, a street-level dealer can face the same minimum sentence as the head of a large drug trafficking organization.  A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five-year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap).

In our recent report, one former US Attorney told us: “The public simply does not realize how many low-level guys are in [federal] prison.… We lock up the lowest fruit in drug conspiracies. I once asked another US Attorney with 30 years as a prosecutor how many times he’d put a major drug player in prison. He said he could count them on one hand.”[3]

You next cite in your letter that “those who would benefit from these reduced sentences are not ‘non-violent’—they would include repeat drug traffickers and criminals with a history of violence.” This is only part of the story. Almost half (49.6 percent) of all federal drug offenders imprisoned in Fiscal Year 2013 fell under the lowest criminal history category (zero or one criminal history point under the federal sentencing guidelines).[4] And 83.8 percent of federal drug offenders during the same period were found to not have a weapon involved in their crime.[5] A small percentage of drug offenders may have used a weapon in their offense, but the mandatory minimums you defend are wilfully blind to the vast numbers of those who didn’t.

To brand all drug offenders as violent is too broad a sweep—no sane sentencing policy should make that assumption.

Third, you argue that long mandatory minimums have resulted in a reduction in crime.

Just two weeks before you released your letter, the National Research Council released a comprehensive report on the growth of incarceration in the United States that, to say the least, calls into question this hypothesis. The Council, as you know, is the nation’s premier source of independent, nonpartisan research and expert advice— and it reached the following conclusion about mandatory minimums:

There is little convincing evidence that mandatory minimum sentencing, truth-in-sentencing, or life without possibility of parole laws had significant crime reduction effects. But there is substantial evidence that they shifted sentencing power from judges to prosecutors; provoked widespread circumvention; exacerbated racial disparities in imprisonment; and made sentences much longer, prison populations much larger, and incarceration rates much higher.[6]

We suggest that you also look to states for their experiences with mandatory minimums. New York’s crime rate, for example, continued to drop after the abolition of mandatory minimums in the Rockefeller drug laws. According to the Vera Institute, at least 29 states have rolled back mandatory minimum sentences and subsequently saw a drop in crime rates. 

There is a smart way to approach sentencing reform, and the path that the Senate is on is encouraging. The current sentencing reforms are embracing a broad range of principles, coming from a broad range of civil society, from Human Rights Watch[7] to the Heritage Foundation which stated in a recent report:  “Just as law should be tempered with equity, so should rigid sentencing rules leave room for adjustment in certain cases where a legislatively fixed sentence would be manifestly unjust.”[8]

You state in your letter, after discussing the current use of the safety valve, “Clearly, federal judges have no difficulty in identifying defendants who are deserving of a sentencing reduction.” We agree. Mandatory minimums strip that discretion away from judges, and the current safety valve for mandatory minimums covers a small percentage of people prosecuted under federal drug charges. We encourage you to look at ways to expand that safety valve to give judges the discretion to be able to decide when a mandatory minimum is not appropriate.

If you are committed to preserving mandatory minimums, you should explore whether the current length of federal drug mandatory minimums is pragmatic or excessive.  That’s some of what the Smarter Sentencing Act is trying to address—that maybe ten years for distributing a Campbell’s tomato soup can worth of crack cocaine could, in fact, be excessive.

Finally, while we disagree with many of your concerns regarding the Smarter Sentencing Act, we are hopeful that we share commonalities in how to approach sentencing reform. We were encouraged that you chose to not cite concerns with other sections of the act. As you may recall, one section of the SSA makes retroactive the Fair Sentencing Act, which helped to reduce the disparities between crack cocaine and powder cocaine sentences. This could provide fair treatment for up to 8,000 people currently serving sentences under the old, unfair sentences. Another important section of the SSA is a slight expansion of the judicial safety valve you mention in your letter. The SSA would allow the safety valve to apply to people with two criminal history points instead of one. I hope we can agree that both of these sections are logical and incremental reforms and merit becoming law.

We hope that you reconsider your blanket opposition to addressing excessive mandatory minimums for drug offenders, and that you revisit the possibility of targeted, incremental reductions to these mandatory minimums.

If you would like to discuss these important issues further, please do not hesitate to contact me at ginatta@hrw.orgor at 202.612.4343.

Sincerely,

Antonio M. Ginatta

Advocacy Director, US Program

 


[1]United States Sentencing Commission, “Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/20111031-rtc-pdf/Appendix_D.pdf (accessed May 22, 2014), Appendix D, Figure D-2, Distribution of Offender Function, Fiscal Year 2009 Sample Data.

[2]United States Sentencing Commission, 2013 Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2013/sourcebook-2013 (accessed May 20, 2014), Table 40: Role Adjustment of Drug Offenders in Each Drug Type. See United States Sentencing Commission, Guidelines Manual, November 2013, http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2013/manual-pdf/2013_Guidelines_Manual_Full.pdf (accessed May 22, 2013), Sec. 3B1.1 for an explanation of aggravated role sentence adjustment.

[3]Human Rights Watch, An Offer You Can’t Refuse, December 2013, http://www.hrw.org/reports/2013/12/05/offer-you-can-t-refuse, p. 17. See also Jamie Fellner (Human Rights Watch), “Commentary: Prosecutors Wrong to Oppose Sentencing Reform,” Main Justice, February 4, 2014, http://www.hrw.org/news/2014/02/04/commentary-prosecutors-wrong-oppose-sentencing-reform.

[4]United States Sentencing Commission, 2013 Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2013/sourcebook-2013 (accessed May 20, 2014), Table 37.

[5]Ibid, Table 39. For heroin-related offenses, 86% did not involve a weapon; for marijuana-related offenses, 89.8% did not involve a weapon.

[6]National Research Council, The Growth of Incarceration in the United States (Washington, DC: The National Academies Press, 2014).

[7]See Human Rights Watch, Nation Behind Bars, May 2014, http://www.hrw.org/news/2014/05/06/us-nation-behind-bars; Human Rights Watch, An Offer You Can’t Refuse

[8]Evan Bernick and Paul Larkin, “Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms,” Heritage Foundation, http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimum-sentences-the-arguments-for-and-against-potential-reforms (accessed May 20, 2014).