The Smarter Sentencing Act
Senators Durbin (D-IL), Lee (R-UT)
Representatives Labrador (R-ID), Scott (D-VA)
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. Nearly 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, and the safety of both prison guards and inmates is at risk. Federal incarceration
has become one of our nation’s biggest expenditures, swallowing the budget of federal 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
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 a one-size-fits-all mandatory sentence. Still,
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 not working and that cost
taxpayers dearly without making our families and communities safer.
Our current 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.”
Some experts have called for the repeal of all federal mandatory minimums. The bipartisan Durbin-Lee
bill is an incremental approach that does not abolish any mandatory sentences. 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.

Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair
Sentencing Act of 2010 unanimously passed the Senate before it was signed into law. The Act
reduced a decades-long sentencing disparity between crack and powder cocaine offenses. As one
Republican 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 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.

Increasing individualized review for certain drug sentences: Nearly half of the inmates filling our
federal prisons are incarcerated for drug offenses. While these offenders often need consistent
accountability or treatment to reduce recidivism, many do not need overly harsh penalties at
taxpayer expense. The Smarter Sentencing Act lowers certain drug mandatory sentences, allowing
judges to determine, based on individual circumstances, when the harshest penalties should apply.
The Act does not repeal any mandatory minimum sentences and does not lower the maximum
sentences for these offenses. 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.
The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of
Evangelicals to the United Methodist Church. It is supported by groups and individuals including:
Heritage Action; Justice Fellowship of Prison Fellowship Ministries; The Council of Prison Locals,
AFGE; Association of Prosecuting Attorneys; the ACLU; Grover Norquist; the National Organization
of Black Law Enforcement Executives; American Correctional Association; the Leadership
Conference on Civil and Human Rights; the NAACP; Faith & Freedom Coalition; the Sentencing
Project; 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. The policies in the
Smarter Sentencing Act have also been unanimously supported by the bipartisan U.S. Sentencing
Commission and by more than 50 former federal judges and prosecutors.