The Smarter Sentencing Act
Senators Durbin (D-IL), Lee (R-UT) – S.1410
Representatives Labrador (R-ID), Scott (D-VA) – H.R.3382
We must be strict, but also smart, when it comes to federal criminal sentencing. We have 500 percent
more inmates in federal custody than we did 30 years ago. About 50 percent of those federal inmates
are serving sentences for drug offenses. And what we spend on federal incarceration has increased by
more than 1100 percent. The effects have been profound: The Federal Bureau of Prisons is nearly 40
percent over capacity, the safety of both prison guards and inmates is at risk, and we have lost
important resources for law enforcement and crime prevention. Federal incarceration has become one
of our nation’s biggest expenditures, swallowing the budget of law enforcement. It costs about $29,000
a year to house just one federal inmate, almost four times the average yearly cost of tuition at a public
university. In today’s economy, we need to be smarter about our sentencing practices, focusing
limited resources on violent offenders who present the greatest public safety risks.
Our burgeoning prison population is in large part due to the increasing number and length of certain
federal mandatory sentences. Mandatory sentences, particularly drug sentences, can take individualized
review out of a judge’s hands by requiring imposition of the same mandatory sentence regardless of
the culpability and role of an offender. The number of federal mandatory sentences has doubled during
the last 20 years, with unintended consequences. As Justice Anthony Kennedy said: “I am in
agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise
and often unjust mechanism for sentencing.” More than 60 percent of federal district court judges
agree that existing mandatory minimums for all offenses are too high. The bipartisan U.S. Sentencing
Commission said: “[T]he Commission unanimously believes that certain mandatory minimum
penalties apply too broadly, are excessively severe, and are applied inconsistently . . . .” Especially in
this post-sequester climate, it is imperative that we take steps to update sentencing policies that
are costing taxpayers dearly without making our families and communities safer.
Law enforcement has made great progress in curbing violent crime in recent years. But our current
federal sentencing practices are threatening public safety and our criminal justice priorities.
Incarceration and detention costs account for nearly a third of the Department of Justice’s discretionary
budget. As the Department of Justice has said: “[I]f . . . we do not reduce the prison population and
prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents
to investigate federal crimes, less support to state and local criminal justice partners, less support to
treatment, prevention and intervention programs, and cuts along a range of other criminal justice
priorities.” U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost more
than 1500 positions, and resources for state and local law enforcement have decreased dramatically.
Some experts have called for the repeal of all federal mandatory minimums. The bipartisan Durbin-Lee
bill is a more incremental approach that focuses on non-violent drug offenses. It does not abolish any
mandatory sentences or decrease any maximum penalties. Rather, it takes a studied and modest step in
modernizing drug sentencing policy by:

Modestly expanding the existing federal “safety valve”: Our legislative “safety valve” has been
effective in allowing federal judges to appropriately sentence certain non-violent drug offenders
below existing mandatory minimums. This safety valve has proved successful, but only applies to a
narrow subset of cases. The Smarter Sentencing Act would modestly broaden criteria for
eligibility. This change, which only applies to certain non-violent drug offenses, is supported by
nearly 70 percent of federal district court judges. The safety valve would continue to apply only to
non-violent offenders who do not use weapons or serve as the leader of an offense.

Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair
Sentencing Act of 2010 unanimously passed the Senate and the House before it was signed into
law. The Act reduced a decades-long sentencing disparity between crack and powder cocaine
offenses. As one Republican Senate Judiciary Committee member has stated, “we are not able to
defend” the unfair sentences that existed before the Fair Sentencing Act. Unfortunately, because of
the timing of their sentences, some individuals are still serving far-too-lengthy sentences that
Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act
allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition
for sentence reductions consistent with the Fair Sentencing Act and current law. This provision
does not automatically reduce a single sentence. It allows individuals to petition courts and
prosecutors for an individualized review of their case. Viewing all circumstances, including public
safety, criminal history, and the nature of the offense, a judge can grant or deny any petition.
Federal courts successfully and efficiently conducted similar crack-related sentence reductions
after 2007 and 2011 changes to the Sentencing Guidelines with larger numbers of eligible
offenders.

Increasing individualized review for certain drug sentences: About half of the inmates filling our
federal prisons are incarcerated for drug offenses. While these offenders need accountability and
treatment to reduce recidivism, too many are serving overly harsh penalties at taxpayer expense.
The Smarter Sentencing Act lowers certain drug mandatory sentences, allowing federal judges to
determine, on a case-by-case basis, when the harshest penalties should apply. The Act does not
repeal any mandatory minimum sentence and does not lower any maximum sentence. This
approach keeps intact a floor at which all offenders with the same drug-related offense will be held
accountable, but reserves the option to dole out the harshest penalties where circumstances warrant.
These changes do not apply to penalties for violent offenses.

Focusing criminal justice funding in the right places: The Smarter Sentencing Act requires the
Department of Justice to report as to how reduced expenditures on federal corrections and the costs
savings resulting from the Act will be used to increase investment in law enforcement and crime
prevention, and help reduce recidivism, thereby increasing the effectiveness of criminal justice
spending.
Support for the Smarter Sentencing Act:
The policies in the bipartisan Smarter Sentencing Act are unanimously supported by the bipartisan
U.S. Sentencing Commission, the Judicial Conference of the United States, and by more than 100
former federal judges and prosecutors. The Smarter Sentencing Act is supported by faith leaders like
the National Association of Evangelicals and the United Methodist Church. It is also supported by
groups and individuals including: Heritage Action; Justice Fellowship of Prison Fellowship Ministries;
The Council of Prison Locals, AFGE; Major Cities Chiefs Association; Association of Prosecuting
Attorneys; the ACLU; Grover Norquist; International Union of Police Associations; the National
Organization of Black Law Enforcement Executives; American Correctional Association; National
Task Force to End Sexual and Domestic Violence; the Leadership Conference on Civil and Human
Rights; Texas Public Policy Foundation; the NAACP; Ralph Reed, Faith & Freedom Coalition; the
Sentencing Project; R Street Institute; Open Society Policy Center; the American Bar Association;
NAACP Legal Defense and Educational Fund; the National Association of Criminal Defense Lawyers;
Families Against Mandatory Minimums; the Constitution Project; Drug Policy Alliance; Brennan
Center for Justice; Lawyers’ Committee for Civil Rights Under Law; and Human Rights Watch.