Federal Sentencing and Prison Reform

The Firm is currently working with an informal group of former federal prosecutors and senior government officials to advance federal sentencing and prison reform legislation. These “formers” explain the need for meaningful federal criminal justice reform and endorse this legislation in their Policy Statement of Former Federal Prosecutors and Other Government Officials.

In the Senate, we are working to advance S 2123, the Sentencing Reform and Corrections Act of 2015;

To reform federal sentencing laws (Title I) and correctional institutions (Title II), and for other purposes.
For the most part, Title II of this bill is the same as S 467, the CORRECTIONS (Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System) Act, which was introduced by Senator John Cornyn (R-TX) on February 11, 2015, for himself and 6 original cosponsors: Senators Sheldon Whitehouse (D-RI), Mike Lee (R-UT), Richard Blumenthal (D-CT), Orrin Hatch (R-UT), Chris Coons (D-DE), and Lindsey Graham (R-SC).
Negotiations on combining the CORRECTIONS Act with thoughtful, targeted sentencing reforms began in March 2015, and S 2123 was introduced by Chairman Chuck Grassley (R-IA) on October 1, 2015, for himself and 9 original cosponsors: Senators John Cornyn (R-TX), Dick Durbin (D-IL), Mike Lee (R-UT), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), Charles Schumer (D-NY), Patrick Leahy (D-VT), Tim Scott (R-SC), and Cory Booker (D-NJ).
We played a supporting role in a Senate Judiciary Committee hearing on the bill on October 19, 2015.
The bill was then marked up and passed by the Senate Judiciary Committee by a strong, bipartisan 15-5 vote on October 22, 2015.
On October 26, 2015, the bill was reported out of the Committee by Chairman Grassley with an amendment in the nature of a substitute, without written report.
The bipartisan bill now awaits a debate and vote on the Senate floor.
It currently has 28 cosponsors.

In the House, we are working advance HR 759, the Corrections and Recidivism Reduction Act of 2016.

To enhance public safety by improving the effectiveness and efficiency of the Federal prison system with offender risk and needs assessment, individual risk reduction incentives and rewards, and risk and recidivism reduction.
The bill was introduced by Congressman Jason Chaffetz (R-UT) on February 5, 2015, for himself and 3 original cosponsors: Congressmen Cedric Richmond (D-LA), Trey Gowdy (R-SC), and Hakeem Jeffries (D-NY).
On February 11, 2016, the bill was marked up, passed and ordered to be reported (amended) by the House Judiciary Committee by voice vote.
The bipartisan bill now awaits a debate and vote on the House floor.
It currently has 11 cosponsors, and a manager’s amendment is currently being drafted in preparation for a House Judiciary Committee markup.

In the House, we are also supporting HR 3713, the Sentencing Reform Act of 2015.

To reform sentencing laws, and for other purposes.
The bill was introduced by Chairman Bob Goodlatte (R-VA) on October 8, 2015, for himself and 17 original cosponsors.
On November 18, 2015, the bill was marked up, passed and ordered to be reported (amended) by the House Judiciary Committee by voice vote.
The bipartisan bill now awaits a debate and vote on the House floor.
The bill currently has 49 cosponsors.

From the Senate Judiciary Committee announcement regarding the Sentencing Reform and Corrections Act of 2015:

WASHINGTON–On October 1, 2015, A bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin today is introducing comprehensive legislation aimed at recalibrating prison sentences for certain drug offenders, targeting violent criminals, and granting judges greater discretion at sentencing for lower-level drug crimes. The package also seeks to curb recidivism by helping prisoners successfully re-enter society. The Sentencing Reform and Corrections Act of 2015 is also sponsored by Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), and Cory Booker (D-N.J.).

“This historic reform bill addresses legitimate over-incarceration concerns while targeting violent criminals and masterminds in the drug trade. It’s the product of thoughtful bipartisan deliberation, and I thank my colleagues for their hard work to promote opportunities to reduce recidivism while protecting our communities from violent career criminals. This bill is an important component in my ongoing effort as Judiciary Committee chairman to ensure access to justice for both the victims and the accused,” Grassley said.

“This compromise represents more than three years of work on criminal justice reform. The United States incarcerates more of its citizens than any other country on earth. Mandatory minimum sentences were once seen as a strong deterrent. In reality they have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, our country must reform these outdated and ineffective laws that have cost American taxpayers billions of dollars. This bipartisan group is committed to getting this done,” Durbin said.

“This legislation is modeled after successful Texas reforms that have rehabilitated prisoners, reduced crime rates, and saved taxpayer dollars. This bipartisan package will protect law enforcement’s ability to aggressively target violent criminals and serious offenders, while focusing on justice, rehabilitation, and public safety. I look forward to working with this bipartisan coalition to move this bill through Congress and to the President’s desk,” Cornyn said.

“This bill marks an important step toward making our criminal justice system fairer by reducing overcrowded prison populations and giving prisoners the help they need to avoid committing future crimes. It also reflects a growing bipartisan recognition that we cannot incarcerate our way to safer communities, and that the current system too often pushes individuals into a cycle of recidivism that is hard to break. I thank Chairman Grassley for leading the long, thorough and collaborative process, respecting a wide range of views, that ultimately produced this bill, and I’m proud to support it,” Whitehouse said.

“Since my time as a federal prosecutor, I have been concerned that federal sentencing laws too often require punishments that just don’t fit the crime. These laws require many nonviolent offenders to spend years in prison, often with few opportunities for meaningful reform. Today’s legislation addresses both of these problems by reducing mandatory minimums and by expanding opportunities for programs that have been proven to reduce recidivism. I am grateful for the close collaboration with senators from both parties that has made this important bill a reality today,” Lee said.

“Crafting criminal justice reform in this Congress is like a Rubik’s cube, but this group of Republicans and Democrats worked hard to come up with a fair and balanced package that will make a real difference. This bill would make much needed reforms to sentencing for non-violent offenders, resulting in a much fairer criminal justice system. I’m hopeful that we can continue moving the ball forward in a bipartisan way to make the reforms our system needs,” Schumer said.

“We maintain the tools law enforcement needs to continue making sure that the worst drug traffickers and violent criminals stay off of our streets. We also provide flexibility in sentencing for those offenders that deserve it. I’m proud to support this important legislation,” Graham said.

“The broad bipartisan nature of this bill marks a new chapter in criminal justice reform. Although I wish this bill did more, it will impact thousands of lives and save millions of dollars. And, critically, its changes are not just forward looking. By applying many of these reforms retroactively, Congress is, for the first time, acknowledging that when we pass unfair laws, we have a moral responsibility to fix our mistakes. Real people, like Weldon Angelos, are paying with decades of their lives. We must keep pushing and see that this bill is enacted,” Leahy said.

“For decades, our broken criminal justice system has held our nation back from realizing its full potential. Today, we take a step forward. Mass incarceration has cost taxpayers billions of dollars, drained our economy, compromised public safety, hurt our children, and disproportionately affected communities of color while devaluing the very idea of justice in America. The Sentencing Reform and Corrections Act is a promising, bipartisan step forward to help right this wrong,” Booker said.

The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law. The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.

In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.

From the House announcement regarding the Corrections and Recidivism Reduction Act of 2016:

Washington, D.C. – The House Judiciary Committee today approved by voice vote the Corrections and Recidivism Reduction Act (H.R. 759) to reform the federal prison system, strengthen public safety, enhance prison security, provide inmates the help they need, and protect civil liberties. This legislation is one of many bills that have been approved by the House Judiciary Committee as part of its bipartisan criminal justice reform initiative.

At the markup, the Committee adopted a bipartisan amendment in the nature of a substitute that was offered by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Ranking Member John Conyers (D-Mich.), Congressman Jason Chaffetz (R-Utah), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Ranking Member Sheila Jackson Lee (D-Texas), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), Representative Cedric Richmond (D-La.), Representative Doug Collins (R-Ga.), Representative Hakeem Jeffries (D-N.Y.), Representative Trey Gowdy (R-S.C.), and Representative Karen Bass (D-Calif.).

Below are statements from the authors of the legislation praising today’s Committee approval of the bill.

Chairman Goodlatte: “Today the House Judiciary Committee approved another important component of its bipartisan criminal justice reform initiative. The Corrections and Recidivism Reduction Act makes meaningful reforms to the prison system that strengthen the safety of our communities and provide inmates the help that they need while in prison to help them better reenter society upon their release. I thank the many members that have worked on this bill and look forward to continue working on other issues facing the criminal justice system.”

Ranking Member Conyers: “I am pleased that the Committee has continued its work on criminal justice reform legislation by approving a bipartisan bill to reform our federal prisons. This bill will provide a meaningful opportunity to many offenders to reduce their time in prison through successful participation in various programs that will reduce their risk of recidivism. For too long, our prisons have simply warehoused individuals whom we know will eventually return to society and, for their benefit and ours, it simply makes sense that we provide incentives for prisoners to be better prepared to re-enter and be productive members of their communities. Adoption of this bill by the Committee is a good first step toward making our federal prison system more humane, more effective, and less costly. I look forward to House consideration of this and other criminal justice reform bills.”

Rep. Chaffetz: “It is not enough to be tough on crime. We have to be smart on crime. More than 95 percent of people that go to prison will be released. Our collective goal should be to lower the recidivism rates and prepare inmates to integrate back into our communities. We all benefit if inmates gain marketable skills rather than criminal insights during their sentence. This legislation will facilitate integration while saving taxpayers money.”

Crime Subcommittee Ranking Member Jackson Lee: “Recidivism is a multi-tiered problem with no easy answer. The legislation passed by the committee today is an excellent first step in the direction to helping former inmates. The bill reflects many of the provisions that I fought for including parenting skills and re-entry plans to name a few. Many factors go into a former inmate’s decision to re-offend after release. It is important to note, however, that there have been many studies showing prison programs systems which provide institutional programming have lower recidivism rates among those who are released. Prison programs such as anger management, vocational skills training, educational opportunities, and even trauma support groups are vital to ensuring inmates who are reintroduced to the general population have the life skills necessary to stay on the right path. I look forward to this bill passing the House and going to the President’s desk for his signature.”

Crime Subcommittee Chairman Sensenbrenner: “The Corrections and Recidivism Reduction Act is an important component of our broad criminal justice reform efforts. Ensuring prisoners make a smooth transition from incarceration back into the population is imperative for strong families, strong communities, and long-term success. This bill will reduce the amount of taxpayer money spent on our broken federal prison system, make neighborhoods safer, and provide individuals with the tools they need to stay out of prison and be productive members of society.”

Rep. Richmond: “Being serious about reducing the prison population starts with making the necessary investment to rehabilitate and prepare inmates to lead productive lives once they return home. Increasing access to proven recidivism risk reduction programs will equip them with life skills that help keep ex-offenders from falling back into the same bad choices that landed them in prison in the first place. I’m proud to join my colleagues in getting the federal government out of the business of warehousing inmates and into the business of reforming and rehabilitating people.”

Rep. Collins: “Reducing the likelihood of recidivism through these reforms will be a step toward ending the vicious cycle in which so many former inmates find themselves trapped. The transforming power of a second chance is something I have seen during my time in the ministry. Giving qualified, low-risk offenders increased access to rehabilitative programs during and after their sentences will ultimately help lead them to live productive lives outside prison and increase public safety. This legislation also includes a provision that I co-authored to protect the fundamental right of attorney-client privilege by ensuring that electronic communications are treated the same way as other forms of privileged communication between an inmate and their legal representative. I believe all Americans have a right to legal representation, and interfering with that would be a violation of their Constitutional rights. These common sense reforms will save taxpayers money, while making our criminal justice system more effective.”

Rep. Jeffries: “We have a badly broken criminal justice system in America that has decimated countless families and wasted millions of taxpayer dollars. This bill is a significant first step in the right direction with respect to encouraging rehabilitation, promoting successful re-entry and improving the efficient administration of government funding. The country will be a better place when this legislation is enacted into law.”

Rep. Gowdy: “H.R. 759 is an important step toward creating a smarter and more effective federal prison system. It incentivizes individuals to take steps to reduce their risk of ending up back in federal prison while implementing new policies to enhance public safety and prison security. It also protects inmates’ civil liberties by respecting attorney-client privilege in electronic communications. I thank my colleagues for their hard work on this bipartisan legislation and look forward to continuing to work with them to improve our federal prison system.”

Rep. Bass: “Restraining pregnant inmates, especially when they are giving birth, is barbaric. It is ludicrous to think that a woman prisoner giving birth would be at risk of escaping. I am glad that the final bill contains language that I authored that will prevent women prisoners from being restrained unnecessarily while they are pregnant or giving birth. Several states have already outlawed this practice, and the federal government should as well.”

Key Components of Corrections and Recidivism Reduction Act:

Strengthens Public Safety:

The Corrections and Recidivism Reduction Act implements a post-sentencing dynamic risk assessment system to determine an inmate’s risk of committing more crimes upon release from prison. Under the legislation, the Bureau of Prisons (BOP) would utilize effective recidivism reduction programs and provide incentives for inmates to participate in those programs. Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their prison sentence.

Renders criminals convicted of certain serious offenses ineligible for the alternative custody program, including dangerous sexual offenders, murderers, and others.

Enhances Prison Security:

The bill authorizes the Director of BOP to issue pepper spray to those employed in a prison above the medium security level.

The bill requires the Director of BOP to provide a secure storage area outside the secure perimeter for employees to store firearms or to allow for vehicle lock boxes for firearms.

The bill requires the Director of BOP to provide de-escalation training as part of the regular training requirements of correctional officers.

Provide Inmates the Help They Need:

The bill requires BOP to initiate pilot programs for youth mentorship and the training and therapy of rescue dogs.

It requires BOP to submit a report and evaluation of the current pilot program to treat heroin and opioid abuse through medication assisted treatment.

The bill extends the compassionate elderly release provision from the Second Chance Act that allows the prisoner to request for his or her compassionate release if he or she meets the requirements set out in the law.

The bill codifies BOP’s rules on using restraints on pregnant inmates, which generally prohibit the use of restraints on pregnant inmates except those who are an immediate and credible flight risk or threat of harm to herself, the baby, or others.

Protects Civil Liberties:

The bill prevents BOP from monitoring the contents of electronic communications to or from a prisoner in a federal prison facility and his attorney or other legal representative. The bill contains an exception when BOP obtains a court order to monitor electronic communications for the purpose of entering it into evidence, or use or disclose, the contents of the communications.

Learn more about the House Judiciary Committee’s criminal justice reform initiative here.