Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On the Introduction of the Justice Safety Valve Act of 2015

Today I once again join with Senator Paul to introduce the Justice Safety Valve Act.  This bill makes a simple, common sense change – it will allow judges to once again sentence offenders on their individual merits based on the individual facts of the case before them.  Mandatory minimums take away that common sense and discretion and have helped to drive our prison population to once-unthinkable levels, draining vital resources from all other public safety priorities. One-size-fits-all sentencing also threatens traditional notions of due process and culpability, resulting in sentences that too often bear little relationship to the crime.

This is not to say that many offenders do not deserve long sentences.  Criminals must be held accountable, and as a former prosecutor I know that long sentences can be necessary and appropriate.  Many violent criminals, in particular, deserve long sentences to protect the public and deter others who would commit violent crime.  I have come to believe, however, that mandatory minimum sentences do more harm than good. 

Passing new mandatory minimum laws has become a convenient way for lawmakers to claim that they are “tough on crime.”  The number of crimes subject to mandatory penalties nearly doubled between 1991 and 2011.  But lost in the rhetoric is that there is no evidence that these sentences keep us safer.  Many drug mandatory minimums, for example, are triggered by the weight of the substance involved, often in a complicated conspiracy where the individual defendant had only a very minor role.  That is why the Sentencing Commission has found that there is no correlation between an offender’s role and the amount of drugs in an offense, resulting in a mandatory penalty scheme that sees no difference between a minor courier and a kingpin.  Currently, nearly half of all Federal offenders are held on drug crimes – we know that not all of them are kingpins, or even major players.

The massive increase in our prison population places immense strain on the Justice Department’s public safety budget.  Driven in significant part by the creation of mandatory minimums, the Federal prison population has grown by over 800 percent since 1980.  The Bureau of Prisons now houses more than 210,000 offenders, consuming nearly one third of the Justice Department’s budget.  Just on Monday, the President requested $7.3 billion to fund Federal prisons in fiscal year 2016.  Yet public safety resources are finite.  Every dollar spent on unnecessary incarceration is a dollar less that goes to Federal law enforcement, victims’ and reentry services, and assistance for state and local law enforcement.  That is, it means less funding for crime reduction strategies that are actually proven effective.

We are also not acting without precedent. States across the country, both red and blue, have curtailed mandatory minimum sentencing and seen both their prison populations and crime rates fall.  States like Arkansas, Connecticut, Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Rhode Island, and South Carolina – all have since seen reductions in both violent and property crime.

The bill we introduce today would extend an existing “safety valve” provision, which currently only applies to certain low level drug offenders, to all Federal crimes subject to mandatory minimum penalties.  A judge could depart from a mandatory minimum sentence if key factors are met, such as the revised sentence being sufficient to protect the public and deter other offenders.  The judge would be required to provide notice to the parties and to state in writing the reasons justifying the alternative sentence.  The bill does not prevent prosecutors from seeking or judges from imposing a sentence exceeding a mandatory minimum.  Serious offenders will still be treated as such.

There is nothing to fear from restoring discretion to judges.  We have long trusted juries to determine guilt and judges to determine the sentence.  Judges have been making sentencing decisions since before our Nation’s founding.  Yet when faced with mandatory penalties, they are reduced to mere bystanders, unable to weigh the facts or act as a safeguard against excessive, unnecessary sentences.  This is why nearly 70 percent of more than 600 federal district court judges surveyed in 2010 support extending the safety valve to all federal crimes, as this bill would do.

As mandatory minimums have transferred discretion from sentencing hearings to charging decisions, the result is a slew of new disparities.  Some prosecutors routinely seek charges carrying mandatory minimum penalties; others rarely do.  Take, for example, felony drug enhancements under 18 U.S.C. §851.  Data from a 2011 Sentencing Commission report revealed that 17 districts applied the enhancement to more than 50 percent of eligible offenders at sentencing, while 37 districts applied it to less than 10 percent.  Comparing the application rates of neighboring districts reveals the absurdity of our mandatory sentencing scheme.  An offender in Sioux City, Iowa is 2,532 percent more likely to receive the enhancement than just across the river in South Sioux City, Nebraska.  Similarly, an offender in Athens, Georgia is 2,470 percent more likely to receive the enhancement than just down the road in Jefferson, Georgia.  In other words, a mile can make a decade’s worth of difference in prison, or more.  This is not justice.

I am heartened by the increased attention to and bipartisan frustration with mandatory minimum penalties.  This is not a conservative or liberal issue.  George Will, Grover Norquist, and Charles Koch all recognize the flaws with mandatory sentencing.  But this is a problem that Congress created, and only Congress can fix.  I thank Senator Paul for his commitment to creating a more fair and effective sentencing system. I hope other Senators will now join us in supporting this legislation. It is time for us to focus our taxpayer dollars on evidence-based solutions to reducing crime, not simply on building endless prisons.

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