Federal Legislative Update (Criminal Justice)
By Bruce Nicholson, Senior Legislative Counsel
Date: April 15, 2016
The following updates the status of major legislation and related initiatives in the 114th Congress
of interest to the Criminal Justice Section.
1.
Sentencing and Corrections Reform
A bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley (RIA) and Dick Durbin (D-IL) on October 1, 2015 introduced comprehensive legislation aimed at
recalibrating prison sentences for certain drug offenders, narrowing mandatory minimum
sentences to target 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 reenter society. S. 2123, the Sentencing Reform and Corrections Act of 2015 (SRCA),
is also sponsored by Senators John Cornyn (R-TX), Sheldon Whitehouse (D-RI), Mike Lee (R-UT),
Lindsey Graham (R-SC), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) Tim Scott (R-SC) and Chuck
Schumer(D-NY).
Over the five months previous to introduction six key Republican and Democratic members of
the Senate Judiciary Committee held intensive negotiations with the aim to reach a consensus
“deal” on sentencing provisions that would be included in a Senate criminal justice reform
package, along with S. 467, the CORRECTIONS Act, ultimately leading to introduction of the
SRCA.
The SRCA bill narrows the scope of mandatory minimum prison sentences to focus on the most
serious drug offenders and violent criminals, while broadening the authority of federal judges to
sentence below set mandatory minimums for individuals with criminal histories that do not
include serious drug or violent offenses. The bill also makes retroactive the Fair Sentencing Act
and certain statutory reforms that address inequities in drug sentences, a provision that would
make an estimated 6,500 federal prisoners sentenced prior to the change in law eligible to
petition for sentence reduction.
In addition to reducing prison terms for certain offenders through sentencing reform, the bill includes
provisions from the prison reform CORRECTIONS Act introduced by Senators Cornyn and Whitehouse.
These provisions would allow qualifying inmates to earn reduced sentences through participation in
recidivism reduction prison programs including work, job training, drug treatment and faith-based
activities.
The legislation also includes provisions to ban solitary confinement for juveniles, allows juveniles
sentenced to life to seek a reduction in sentences after 20 years, and provides authority for
expungement of juvenile records for most non-violent offenses.
The Senate Judiciary Committee held a hearing on S. 2123 on October 19, 2015. The hearing testimony
and a webcast link are posted on the Committee website at:
http://www.judiciary.senate.gov/meetings/s-2123-sentencing-reform-and-corrections-act-of-2015.
The Committee approved S. 2123 on a 15-5 vote on October 22, 2015, following a markup session that
included the same 15-5 vote against “poison pill” amendments offered by Senators Ted Cruz (R-TX),
David Perdue (R-GA) and Jeff Sessions (R-AL). Senator Orrin Hatch (R-UT) offered and withdrew an
amendment to add his mens rea bill, (introduced later as S. 2298: see below).
Following the markup, in discussions about bringing S. 2123 to the Senate floor, Senate Majority Leader
Mitch McConnell indicated that the bill would need to gain support among a “majority-of-the-majority”
before he would schedule it for floor debate. He has steadfastly since then maintained this perspective
on the bill. The bipartisan Senate sponsors working with a broad right left coalition worked throughout
November and December focusing on non-Judiciary Committee Republican Senators with the resulting
count of 28 cosponsors, evenly divided with 14 Republicans and 14 Democrats. Senator McConnell in
late January told Senators Cornyn and Grassley that they need to get an additional 10 Republicans, so
that the prospect of a divided Republican delegation would be minimized for floor debate and a vote.
The bipartisan team that drafted S. 2123 - Grassley, Durbin, Cornyn, Lee, Graham, and Whitehouse began talks in February 2016 on revising S. 2123 to address concerns raised by key Senators opposed to
the bill as to proposed reduced sentences for certain firearms offenses. After weeks of talks, they
agreed to remove provisions that would have amended the Armed Career Criminal Act and some tweaks
to other provisions and went back to non-committed Republican Senators to ask them to consider
cosponsoring the revised bill. Thus far, three new Republican cosponsors, two in the past week, have
come on the bill: Thad Cochran (R-MS), Mark Kirk (R-IL), and John McCain (R-AZ). This progress is
encouraging, but time is growing short in this election-year Congress for progress on any initiatives.
Spurred in part by the Senate bill markup, House Judiciary Chair Bob Goodlatte (R-VA) and Ranking
Member John Conyers, Jr. (D-MI) reached agreement on a bipartisan House counterpart sentencing bill,
H.R. 3713, the Sentencing Reform Act of 2015, introduced on October 8, 2015. The House Judiciary
Committee approved H.R.3713 unanimously on a voice vote on November 18, 2015. At the same
session, the Committee also approved by voice vote a separate bill that would provide for a default
mens rea element in all federal criminal provisions, with and exception for statutes that explicitly reject
any requirement of criminal intent. (See discussion below). H.R. 3713 currently has 64 cosponsors.
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Following the House Judiciary Committee markup, Chairman Goodlatte indicated that his plan was for
the Committee to consider a “corrections” bill like that included in the Senate package bill, S. 2123, and
perhaps some other criminal justice measures, before combining those into a House criminal justice
package bill to be considered by the full House of Representatives for final passage.
On February 11, 2016, the House Judiciary Committee held a markup session on H.R. 759, legislation
that closely parallels the CORRECTIONS Act include in S. 2123. H.R. 759, the Recidivism Risk Reduction
Act, was introduced by Representative Jason Chaffetz (R-UT), Cedric Richmond (D-LA), Trey Gowdy (RSC) and Hakeem Jeffries (D-NY) on February 5, 2015.
H.R. 759 was approved by voice vote at the February 11, 2016 markup, and is expected to be part of the
House package including sentencing reform, H.R. 3713, when the bill goes to the House floor. House
Speaker Paul Ryan (R-WI) has on more than one recent occasion stated his intention to bring the House
criminal justice package forward to a House vote and reportedly met in late March 2016 with Chairman
Goodlatte to discuss scheduling. While House leaders have indicated they would wait for the Senate to
act first before moving their package to the House floor, as time grows shorter this year it is more and
more possible that the House will proceed on its bill and not wait further on the Senate based on the
judgment that any further waiti may be futile.
2.
Mens Rea Reform
As noted above, the House Judiciary Committee approved by voice vote on November 18, 2015, H.R.
4002, the Criminal Code Improvement Act of 2015. H.R. 4002 was introduced by House Judiciary Chair
Bob Goodlatte (R-VA) and Ranking Member John Conyers, Jr. (D-MI) on November 16, 2015. A key
provision in H.R. 4002 would amend the federal law to provide for a “default mens rea” standard of
“knowing” for all statutory offenses that do not require a “state of mind” or “if the offense consists of
conduct that a reasonable person in the same or similar circumstances would not know, or would not
have reason to believe, was unlawful..”. H.R. 4002 currently has eight cosponsors.
In the aftermath of the House markup, the White House and DOJ have mounted an aggressive campaign
against the House mens rea proposal and its Senate counterpart, maintaining that this proposal as it
would apply to the entire body of existing law would result in massive litigation and that it would
eviscerate public welfare enforcement statutes that protect the public from damage to the
environment, unsafe food and drugs and other harms. In its public statements and legislative strategy,
the Administration and the bipartisan group of Senate Judiciary criminal justice leaders have maintained
the view that no consensus will be possible in this Congress on a mens rea reform and that this issue
should not be paired with sentencing and corrections in a final House package or it will divide support
for the package and lead to its defeat. Chairman Goodlatte has steadfastly maintained that mens rea
reform is an essential part of House criminal justice reform in this Congress, is essential to broad support
by Republican members and will be part of the House package despite its opposition.
In the Senate, as noted earlier, Senator Orrin Hatch (R-UT) pushed for consideration of his mens rea
provision in the weeks prior to the October Senate Judiciary Committee markup of S. 2123. His office
began circulating a draft bill earlier that summer. They reportedly approached the bipartisan group of
six Judiciary Committee Senators who were engaged in a several month negotiation on finding common
ground on a sentencing and corrections set of proposals to urge them to include mens rea in their talks.
However, the firm judgment of the negotiators reportedly was that the default mens rea proposal was
not ripe in the current Senate for a consensus bill and should be pursued separately.
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Senator Hatch finally introduced his proposal in a bill form on November 18, 2015, the same date as the
House Judiciary Committee approved its mens rea provision. It is S. 2298, the Mens Rea Reform Act of
2015. It would operate in a similar fashion to the House provision as a “default” standard but would
make that standard “willful”. In respect to Senator Hatch’s request and in part out of the consideration
that the issue could stall Senate passage of S. 2123, the package bill, the Senate Judiciary Committee
held a hearing on January 20, 2016, titled “The Adequacy of Criminal Intent Standards in Federal
Prosecutions”. Professor Stephen Saltzburg testified at the invitation of the Committee Chair Chuck
Grassley (R-IA) on behalf of the ABA. The other witnesses were Leslie Caldwell, Assistant Attorney
General, Criminal Division, DOJ; Edwin Meese III, former Attorney General and Heritage Foundation
Distinguished Fellow; and Robert Weisman, President, Public Citizen. The hearing testimony is available
at: http://www.judiciary.senate.gov/meetings/the-adequacy-of-criminal-intent-standards-in-federalprosecutions.
Following the hearing, it was clear that there is currently insufficientsupport in the Senate for taking up
S. 2298 as part of the Senate sentencing and corrections package. Many Senators have pointed to the
provision already included in S. 2123 that would require the Attorney General to conduct a
comprehensive inventory of all federal criminal provisions and to include information as to the mens rea
element or lack thereof of each provision as a predicate step before the consideration of a broad
legislative proposal to address this subject.
The issue of whether to include a mens rea reform a final package remains a significant unresolved issue
that may prevent the House, Senate and White House from reaching a compromise deal on enactment
of a sentencing and corrections reform in this Congress. President Obama has reportedly met twice
with Representative Goodlatte in recent months for off-the-record discussions toward reaching
consensus.
3.
Juvenile Justice and Delinquency Prevention Act (JJDPA) Reauthorization
The Senate Judiciary Committee approved an ABA-supported bill by voice vote July 23, 2015 that would
reauthorize and strengthen the Juvenile Justice and Delinquency Act for the first time since 2002. In
approving S. 1169, the Committee accepted a substitute amendment crafted by Committee Chairman
and bill sponsor Charles E. Grassley (R-IA) and cosponsor Senator Sheldon Whitehouse (D-RI). In the
substitute amendment for of the bill approved July 23, new provisions were added to place greater
priority in federal funding for programs that are scientifically proven to work with at-risk juveniles and to
encourage states to phase out the use of shackling of pregnant girls.
S. 1169 was “hotlined” in the Senate in December 2015 and early February 2016. The “hotline” process
is used in the Senate as a process to reach the “unanimous consent” agreement necessary for any bill to
proceed to the floor and through its use Senators who have objection are identified. In December, there
were four Senators who objected. Sponsors and advocates worked to respond to their concern and by
the February hotline, there were just two. One of those was resolved with a tweak in the bill and since
then only the objection of Senator Tom Cotton (R-AR). Senator Cotton objects to a provision in the bill
strongly supported by the ABA to phase out authority under the Act for jailing or secure detention of
status offenders (truants, runaways, curfew violators) under an exception to the Act for “valid court
orders”. Very extensive efforts have been made to facilitate meetings between Arkansas judges,
corrections officials, advocates and other who support this change in laws with the Senator or his staff.
He reportedly is concerned about preserving the power of judges to enforce orders for criminal
contempt of court and although the sponsors of S. 1169 have indicated that they will accept language
offered by his staff, no agreement has been reached. If his objection is lifted, most observers believe S.
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1169 will pass the Senate on unanimous consent or on a recorded vote with upwards of 90 supporters.
The House, led by House Education and Workforce Committee Chair John Kline (R-MN) and Ranking
Member Bobby Scott (D-VA) is ready to move S. 1169 or a comparable bill House bill quickly after the
Senate acts.
In the last week of the last Congress, a bipartisan compromise bill to reauthorize the 1974-enacted
Juvenile Justice and Delinquency Prevention Act (JJDPA) was introduced by Senators Charles Grassley (RIA) and Sheldon Whitehouse (D-RI) as S. 2999. The bill contained provisions strongly supported by the
ABA to phase-out detention of status offenders, to strengthen state efforts to reduce racial disparities,
and to improve access to counsel, among others. A compromise was reached on the bill that mainly
related to authorization levels for funding. Juvenile Justice funding over the last decade has been
reduced by about 60 percent and the reauthorization bill would maintain JJDPA for five years at the
current level ($157 million) with two percent inflation increases each year. Senator Grassley did not
believe that a bill seeking higher funding in the current fiscal environment would gain support. The
juvenile justice advocacy community by-and-large reluctantly accepted this rationale and with solid
substantive reforms and strong bipartisan support, JJDPA reauthorization legislation had the bipartisan
leadership support to move to passage in the current Congress. Senators Grassley and Whitehouse
introduced the 2015 version of the bill on April 30, 2015 as S. 1169, essentially unchanged from S. 2999
in 2014. It currently has 17 Senate cosponsors.
In the House, Representative Bobby Scott (D-VA), now ranking member on the committee of jurisdiction
for JJDPA in the House, the Education and Workforce Committee, introduced on June 11, 2015 the
Youth Justice Act of 2015, H.R. 2728, a bill to reauthorize and improve the Juvenile Justice and
Delinquency Prevention Act of 1974, and for other purposes, with four democrat original cosponsors.
H.R. 2728 currently has 9 cosponsors and has been referred to the House Education and Workforce
Committee. That committee held a related hearing on October 8, 2015 titled “Reviewing the Juvenile
Justice System and How It Serves At-Risk Youth” posted at:
http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=399399.
4.
Fair Chance Act
The Senate Homeland Security and Government Affairs Committee unanimously approved a bipartisan
bill on October 7, 2015 to ensure that persons with criminal records have an opportunity to be
considered for employment with the federal government and federal contractors.
S. 2021, the Fair Chance Act of 2015, was introduced on October 7, 2015 by Senators Cory Booker (D-NJ)
and Ron Johnson (R-WI). It would prohibit Federal agencies and Federal contractors from requesting
that an applicant for employment disclose criminal history record information before the applicant has
received a conditional offer, except in regard to positions requiring certain security clearances and law
enforcement positions. Companion legislation was introduced in the House of Representatives on
October 10, 2015 as H.R. 3470 by Representative Elijah Cummings (D-MD). H.R. 3470 has 20
cosponsors and has been referred jointly to the Armed Services, Oversight and Government Operations,
Judiciary, and Education and the Workforce Committees.
5.
Second Chance Act
On June 4, 2015, Senators Rob Portman (R-OH) and Patrick Leahy (D-VT) introduced S. 1513, the Second
Chance Reauthorization Act of 2015. S. 1513 proposes a “clean reauthorization,” without substantial
change in current law and would authorize funding at $100 million for five years. S. 1513 currently has
15 cosponsors and has been referred to the Senate Judiciary Committee. Bipartisan supporters of
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legislation to reauthorize the 2008-enacted Second Chance Reauthorization Act plan on reintroducing
legislation in the House later this year. In the last Congress, a reauthorizing bill, S. 1690, was approved
and reported out of the Senate Judiciary Committee by a bipartisan vote of 13 to 5 on September 18,
2014.
In the House, Representatives James Sensenbrenner (R-WI) and Bobby Scott (R-VA) introduced
companion reauthorization legislation, H.R. 3406, on July 28, 2015. H.R. 3406 currently has 65 sponsors
including House Judiciary Committee Chair Robert Goodlatte (R-VA), whose committee approved H.R.
3406 on January 12, 2016, clearing the measure for consideration by the full House.
6.
ABA Day Focus on Over-Incarceration
On April 15-16, 2015, led by then ABA President William Hubbard, bar leaders from 50 states gathered
to work together on the 2015 ABA Day on Capitol Hill. During constituent meetings with members of
Congress and staff, attendees addressed two ABA legislative priorities: legislation to address OverIncarceration and Legal Services funding. The issue of “Over-Incarceration” for ABA Day consisted of
two criminal justice issues, juvenile justice reform and federal sentencing reform, which have strong
prospects for passage in this Congress.
ABA President Paulette Brown is to lead this year’s gathering of approximately 360 bar leaders from 50
states to conduct constituent meetings with members of Congress and staff on the same priorities on
April 20-21, 2016. The ABA juvenile justice focus this year is on final passage of S.1169, the Juvenile
Justice and Delinquency Prevention Act, and the ABA Day federal sentencing reform advocacy is
advocacy for final passage of the respective Senate and House sentencing reform bills, S. 2123 and H.R.
3713. The ABA Day website has more information at: http://www.americanbar.org/calendar/abaday/resources/overcriminalization.html.
7.
Justice for All Act Reauthorization
Senators John Cornyn (R-TX), Patrick Leahy (D-VT), Kelly Ayotte (R-NH) and Dick Durbin reintroduced the
Justice For All Reauthorization Act of 2016, S. 2577, on February 24, 2016. S. 2577 currently has nine
cosponsors and has been referred to the Senate Judiciary Committee. Identical legislation was
introduced in the House on February 29, 2016 by Representatives Ted Poe (R-TX), Jim Costa (D-CA) and
James Sensenbrenner, Jr. (R-WI) as H.R. 4602. The House bill currently has four cosponsors and was
referred to the Judiciary Committee.
The legislation is similar to legislation approved by the Senate Judiciary Committee during the 112th
Congress in June 2012 and reintroduced in the immediate past (113th) Congress. The bills include a
renewal of the DNA Backlog Grant Program; amends the Victims of Crime Act regarding victim
restitution; expands grants for sexual assault nurse examiners; amends the Prison Rape Elimination Act
regarding the state compliance certification process; expands and increases authorized funding for FBI
DNA programs; expands, amends and increases funding for the Forensic Sciences Grant Program; and
reduces authorized funding for and amends the allocation of funds criteriafor the Act’s provisions
addressing quality of representation in state capital offenses.
8.
Comprehensive Addiction and Recovery Act of 2015
On March 10, 2016, S. 524, the Comprehensive Addiction and Recovery Act of 2015, legislation to
strengthen and expand federal programs to address drug addiction and abuse, was passed by the Senate
by a 94-1 vote, as amended. S. 524 was introduced in the Senate by Senators Sheldon Whitehouse (DRI) and Rob Portman (R-OH) and others on February 12, 2015.
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Identical House legislation was introduced as H.R. 953 on March 16, 2015 by Representatives James
Sensenbrenner (R-WI) and Tim Ryan (D-OH) and others. It currently has 101 cosponsors and has been
referred jointly to the House Education and Workforce, Energy and Commerce, and Judiciary
Committees.
S. 524/ H.R. 953 would, among other things, authorize: formation of a federal inter-agency task force on
best prescribing practices; a national education campaign; drug treatment grants coordinating;
treatment alternative to incarceration programs; law enforcement training; and education and job
training programs to assist offenders.
9.
Stop Trafficking in Fentanyl Act of 2015
Senator Kelly Ayotte introduced the Stop Trafficking in Fentanyl Act of 2015, S. 2027, to amend the
Controlled Substance Act to modify the thresholds that trigger a mandatory minimum prison term for a
defendant who manufactures, distributes, of possesses with intent to distribute fentanyl. The bill
reduces from 100 to 5 grams and from 400 to 20 grams the fentanyl analogue quantities that trigger a
10-year or 20-year mandatory minimum prison term for high-level first-time or repeat offenders. It also
reduces from 40 to 2 grams the fentanyl quantity and from 10 to 0.5 grams the fentanyl analogue
quantity that trigger a 5-year or 10-year mandatory minimum prison term for low-level first-time or
repeat offenders. S. 2057 currently has no cosponsors and has been referred to the Senate Judiciary
Committee.
Fentanyl is a synthetic opiate used as part of anesthesia in medical setting to relieve pain. It has become
widely used to “cut” or be mixed with heroin to increase the apparent quantities of heroin in the chain
of illegal distribution of that drug and has contributed to the heroin overdose crisis in New Hampshire
and throughout the United States. There is strong resistance to broad expansion of mandatory
minimum sentences in any regard in the current Congress and broader interest in responding to the
heroin problem through public health strategies. In addition, both the House (H.R. 3713) and the
revised Senate (H.R. 2123) sentencing reform bills, contain a non-mandatory sentencing enhancement
provision for fentanyl offenses.
10.
Over-Criminalization
During the last Congress, the House Judiciary Committee approved a resolution to reauthorize a
bipartisan Task Force on Over-Criminalization for two successive six-month periods to examine issues
related to over-criminalization and over-federalization of criminal law. The Task Force held ten hearings
over that period. One area of potential consensus that emerged was with regard to enactment of
legislation to create a “default mens rea” standard of required criminal intent when federal statutes or
case law do not provide for mens rea. Draft legislation now under review would defer to Congress or
legislative history when a strict liability criminal provision or regulation is enacted, but would provide a
default legislative standard when there is no clear evidence of congressional intent.
A second area of over-criminalization legislation is likely “regulatory reform” with a bill to require
federal agencies to inventory regulations that provide for a criminal penalty and report these to
Congress.
A third step occurred in early January. On January 5, 2015, the House adopted its rules package for the
114th Congress. Included in the package was the first amendment to language defining the jurisdiction
of the House Judiciary Committee since the year 1813. The amendment adds “criminalization” to the
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scope of the Committee. With this change, bills that create new crimes, including federal code changes
outside of Title 18, must be referred to the Judiciary Committee for review, hopefully curbing some
problems in recent years of legislation with criminal penalties not being reviewed by the Judiciary
Committee because of technical interpretation of jurisdiction by the House parliamentarian.
11.
SAFE Justice Reinvestment Act
On June 25, 2015, Representatives James Sensenbrenner, Jr. (R-WI) and Bobby Scott (D-VA) introduced
H.R. 2944, the Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015, a bipartisan
comprehensive criminal justice reform proposal that incorporates major recommendations made before
the House Judiciary Over-Criminalization Task Force during the 113th Congress. It includes evidencebased reforms that many states have implemented in recent years to reduce reliance on incarceration
for non-violent offenders, save costs, and serve public safety.
H.R. 2944 includes a broad range of reform provisions that address federal sentencing, the corrections
system, and the federal supervision system. It would limit the application of mandatory minimum
sentences for nonviolent drug offenses to persons whose role was that of a “leader” or “organizer” and
offenders playing major roles in drug crimes, providing discretion in sentencing for lower-level offenses.
It would expand early release authority for geriatric and terminally ill patients, encourage greater use of
probation and problem-solving courts for appropriate offenders, provide for a regime of graduated
sanctions for probation or supervised-release violations, and expand recidivism prevention programs in
prisons. It also includes provisions to reform federal criminal discovery procedure, adopting an “open
file” approach taken by a number of states. The bill also includes a “county the crimes” provision
directing DOJ and federal agencies to inventory all criminal regulatory provisions and post them on an
on-line data base. It includes provisions that would sunset all statutory and regulatory crimes five years
after enactment, unless reauthorized or re-promulgated. The bill includes proposed areas of
reinvestment of savings for a range of law enforcement purposes incorporating recommendations of the
President’s Commission on Twenty-First Century Policing. H.R. 2944 currently has 57 cosponsors and
was referred to the House Judiciary Committee.
12.
House Hearings on Criminal Justice Reform
The House Judiciary Committee held a “listening session” on June 25, 2015, hearing from more than a
half dozen members of Congress regarding criminal justice reform bills they have introduced. The
testimony and webcast links are posted on the Committee’s website at:
http://judiciary.house.gov/index.cfm/2015/6/listening-session-criminal-justice-reform.
The House Oversight and Government Reform Committee held hearings on July 14 and 15, 2015 on
criminal justice reform. Part I, on July 14, like the Judiciary Committee hearing in June, consisted of
witness members of Congress on their respective legislative reform proposals. Part 2, on July 15,
consisted of expert witnesses, addressing sentencing, prison programming, and early release proposals.
The testimony and webcast links are found at: https://oversight.house.gov/hearing/criminal-justicereform-part-i/.
13.
Sentencing Guidelines Amendment on Economic Crimes
ABA Criminal Justice Section Chair James Felman testified on March 12, 2015 before the United States
Sentencing Commission on proposed 2014-2015 amendments to the federal Sentencing Guidelines. He
addressed the proposed amendment on economic crimes, noting the work of the Criminal Justice
Section Task Force on the Reform of Federal Sentencing for Economic crimes. The task force presented
a draft of its findings to the Commission in September 2013. Its final report, issued in November 2014,
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includes recommendations for: diminished weight placed on loss; elimination of loss as a factor that is
“intended” rather than actual; and introduction of “culpability” as a measure of severity, which would
allow consideration of the defendant’s motive, gain and organization. Mr. Felman’s testimony is posted
at:
http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015mar12_ussceconcrimetestim
ony.authcheckdam.pdf. During the hearing, the Commission also heard testimony from judges, federal
public defenders, and representatives from advisory and advocacy groups. The Commission submitted
its proposed amendments to Congress on April 30, 2015; they can be found here:
http://www.ussc.gov/guidelines-manual/amendments-guidelines-manual. They took effect on
November 1, 2015.
14.
Senate Hearing on Right to Counsel in Misdemeanor Cases
On May 13, 2015 the Senate Judiciary Committee held a hearing to examine what the Committee Chair
Charles Grassley (R-IA) stated in opening remarks are widespread, intractable failure to provide counsel
in criminal misdemeanor cases. Advocates believe that this was the first hearing on record on this set of
issues and evidence of a recently emerging bipartisan interest in reform. The testimony presented at the
hearing and webcam links can be found here: ww.judiciary.senate.gov/meetings/protecting-theconstitutional-right-to-counsel-for-indigents-charged-with-misdemeanors. Senators Grassley and Leahy
(D-VT) have been working with the ABA and other advocates for strengthening federal support for public
defense on potential bipartisan legislative initiatives that may be introduced later in 2016.
15.
The Justice for Victims of Trafficking Act
S. 178, the Justice for Victims of Trafficking Act, was signed into law by President Obama on May 29,
2015 (Public Law No: 144-22), following passage by 420-3 vote in the House on May 19 and unanimous
99-0 Senate passage on April 22, 2015. The bill was held up for several weeks in the Senate regarding an
abortion funding provision that was resolved by compromise.
On January 13, 2015, Senator John Cornyn (R-TX) reintroduced the Justice for Victims of Trafficking Act
of 2015, S. 178. It was approved in amended form by the Senate Judiciary Committee on March 2, 2015,
then brought up on the Senate floor on March 12 and was subject to repeated failed cloture votes on
March 18, 2015, over objections by Democrats to language added to the bill to address abortion
funding. In the House, Representative Ted Poe (R-TX) introduced companion legislation with the same
title as H.R. 296. The House bill has two cosponsors and has been referred to the House Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security.
In the last Congress, the House passed the Justice for Victims of Trafficking Act on May 20, 2014 by a
largely partisan vote of 219-190.
S. 178/H.R. 296 as enacted amends the federal criminal code to impose an additional penalty of $5,000
for any person or entity convicted of crimes relating to: (1) peonage, slavery, and trafficking in persons;
(2) sexual abuse; (3) sexual exploitation and other abuse of children; (4) transportation for illegal sexual
activity; or (5) human smuggling in violation of the Immigration and Nationality Act. It also establishes in
the Treasury the Domestic Trafficking Victim’s Fund into which such penalties shall be deposited and
which shall be used beginning in Fiscal Year 2015 to award grants or enhance victims’ programming
under the Trafficking Victims Protection Act of 2000, the Trafficking Victims Protection Reauthorization
Act of 2005, and the Victims of Child Abuse Act of 1990.
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S. 178/H.R. 296 as enacted further amends the federal criminal code to: (1) increase restitution for
victims of human trafficking; (2) set forth provisions for combating aggravated human trafficking
racketeering; (3) allow state and local prosecutors to obtain wiretap warrants in state courts for
investigations into human trafficking, child sexual exploitation, and child pornography production; (4)
increase penalties for offenses involving enticement into slavery, sex trafficking of children, child
exploitation, and repeat sex offenses; and (5) revise the definition of the crime of travel with intent to
engage in illicit conduct to facilitate prosecutions of crime.
16.
Expungement of Criminal Records
On March 9, 2015, Senators Rand Paul (R-KY) and Cory Booker (D-NJ) introduced broad legislation to
address criminal records as S. 675, the Record Expungement Designed to Enhance Employment Act of
2015 (REDEEM Act). S. 675 would take a number of steps to reduce the role of criminal records as a
barrier to employment, including: amending federal law to enable persons convicted of nonviolent
crimes to petition for the sealing of their criminal records; creating an incentive in federal COPS funding
for states that have enacted similar or stronger adult sealing provisions; amending federal law to
automatically seal, and in some cases expunge, juvenile records and providing incentives to states to
enact similar or stronger juvenile confidentiality, sealing and expungement provisions; providing
incentives to states to raise the age of adult responsibility to 18 years old; significantly restricting room
confinement (solitary confinement) of juveniles in the federal system and providing incentives to states
that have enacted similar or stronger provisions; lifting the lifetime ban on SNAP (Food Stamps) and
TANF eligibility for non-violent drug offenders; and requiring the FBI to improve the accuracy of the FBI
background check system. S. 675 was been referred to the Senate Judiciary Committee.
Key REDEEM Act provisions to authorize expungement of certain juvenile criminal records, end federal
juvenile solitary confinement, and require improvement of FBI criminal records have been included in
the bipartisan Senate criminal justice package, the Sentencing Reform and Corrections Act, S. 2123, and
the same provisions in the bill may soon be considered by the House Judiciary Committee.
17.
Felony Voting Rights: Democracy Restoration Act
On March 19, 2015, Representative John Conyers, Jr. (D-MI) reintroduced the Democracy Restoration
Act, H.R. 1459, to restore the right to vote in federal elections to persons with felony conviction records.
The bill is essentially the same as legislation introduced in the past three Congresses. It would restore
the right to vote in federal elections for persons with felony convictions after release from jail or prison.
The reintroduced bill, H.R. 1459, has 36 cosponsors and has been referred to the House Judiciary
Committee. Senator Ben Cardin (D-MD) introduced identical Senate legislation as S. 772 on March 18,
2015. S. 772 currently has 10 cosponsors and has been referred to the Senate Judiciary Committee.
18.
Civil Asset Forfeiture Reform
On January 26, 2015, Senator Rand Paul (R-KY) introduced S. 255, the Fifth Amendment Integrity
Restoration Act of 2015. S. 255 would make a number of significant changes to federal law governing
forfeiture of assets related to crime. It would shift the burden of proof to the government, which would
have to prove that a property owner intentionally used his property for criminal activity, consented to
its use for criminal activity by another person, or was willfully blind to that activity. S. 255 would raise
the standard of proof requirement from the current “preponderance of the evidence” to “clear and
convincing.” It would direct that forfeited proceeds go to the U.S. Treasury’s General Fund, rather than
its current destination, the DOJ’s Asset Forfeiture Fund, and would end equitable sharing with local law
enforcement of forfeited proceeds. S. 255 has five cosponsors and has been referred to the Senate
Judiciary Committee.
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Identical legislation was introduced in the House on January 27, 2015 as H.R. 540 by Representatives
Tim Wahlberg (R-MI), Tony Cardenas (D-CA), Keith Ellison (D-MN), Scott Garrett (R-NJ), and Tom
McClintock (R-CA). H.R. 540 currently has 92 cosponsors and has been referred to the House Judiciary
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
The House and Senate Judiciary Committees gave early, priority attention to the issue. The House
Judiciary Subcommittee on Crime, Terrorism and Homeland Security held a hearing on February 11,
2015 titled “Federal Asset Forfeiture: Uses and Reform”. Testimony and webcast links are available at:
http://judiciary.house.gov/index.cfm/hearings?ID=2966A160-FF62-4083-B937-3F3C399CAF11.
The Senate Judiciary Committee held a hearing on April 15, 2015 titled “The Need for Civil Asset
Forfeiture Reform”. Testimony and webcast links are available at:
http://www.judiciary.senate.gov/meetings/the-need-to-reform-asset-forfeiture.
An alternative legislative reform proposal has been under development for several months and is
reportedly to be introduced in the Senate by Senate Judiciary Chair Charles Grassley (R-IA and in the
House by House Judiciary Chair Bob Goodlatte (R-VA) and Ranking Member John Conyers, Jr. (D-MI)
later this year.
19.
Fairness in Cocaine Sentencing Act
Representative Bobby Scott (D-VA) on March 31, 2015 introduced H.R. 1255, the Fairness in Cocaine
Sentencing Act of 2015, a bill to amend the Controlled Substances Act and the Controlled Substances
Import and Export Act to eliminate increased and mandatory minimum penalties for drug offenses
involving mixtures or substances which contain cocaine base. H.R. 1255 has one cosponsor and has
been referred to the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and
Investigations and to the House Energy and Commerce Subcommittee on Health.
20.
Justice Safety Valve Act of 2015
The Justice Safety Valve Act of 2015, S. 353, was introduced in the U.S. Senate on February 3, 2015, by
Senators Rand Paul (R-KY) and Patrick Leahy (D-VT). S. 353 would amend the federal code to authorize a
federal court to impose a sentence below a statutory minimum if necessary to fulfill the goals of
punishment and other sentencing criteria listed at 18 U.S.C. § 3553(a). S. 353 has two cosponsors and
has been referred to the Senate Judiciary Committee.
Identical legislation was introduced in the House on March 16, 2015 as H.R. 706 by Representatives
Bobby Scott (D-VA), Thomas Massie (R-KY), Steve Cohen (D-TN), and Charles Rangel (D-NY). H.R. 706 has
12cosponsors and has been referred to the House Judiciary Committee.
21.
Early Release for Non-violent Offenders
On February 2, 2015, Representative Sheila Jackson Lee (D-TX) reintroduced H.R. 71, the Federal Prison
Bureau Nonviolent Offender Relief Act of 2015. H.R. 71 would amend the federal criminal code to direct
the Bureau of Prisons, pursuant to a good time policy, to release a prisoner who has served one half or
more of his or her term of imprisonment if that prisoner: (1) has attained age 45; (2) has never been
convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct, of
institutional disciplinary regulations. H.R. 71 has been referred to the House Judiciary Subcommittee on
Crime, Terrorism and Homeland Security.
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22.
Custodial Interrogation Recording Act
Representative Sheila Jackson Lee (D-TX) introduced the Custodial Interrogation Recording Act, H.R. 74,
on January 12, 2015. It amends the Omnibus Crime Control and Safe Streets Act of 1968 to direct the
Attorney General to make grants to states and local governments for the complete and accurate
recording, by both audio and visual means, of every custodial interrogation occurring within the state or
unit of local government. H.R. 74 has been referred to the House Judiciary Committee.
23.
Federal Discovery Reform
Legislation to address the duty of federal prosecutors to disclose favorable evidence to the defense is
expected to be reintroduced in the 114th Congress, at some point after discussions with leading House
and Senate Judiciary Committee members reach a consensus on how to proceed on a renewed push for
reform. As noted earlier, the SAFE Justice Act (H.R. 2944), broad criminal justice reform legislation
introduced with strong bipartisan support in the House, contains a provision to institute “open-file”
discovery in federal criminal cases.
In the 112th Congress, on March 15, 2012, on the same day of the public release of the 525-page
“Schuelke Report” laying out the government’s marred prosecution of the late Senator Ted Stevens (RAK), his former Alaska colleague Senator Lisa Murkowski (R-AK) introduced legislation in the Senate to
implement “Brady” reform to require disclosure of favorable evidence to the defense in federal
prosecutions. S. 2197, the Fairness in Disclosure of Evidence Act of 2012, a bill to require the attorney
for the government to disclose favorable information to the defendant in criminal prosecutions brought
by the United States, was introduced by Senator Murkowski with Senators Akaka (D-HI), Begich (D-AK),
Hutchison (R-TX), and Inouye (D-HI) as original cosponsors. The Senate Judiciary Committee held two
hearings on issues raised by the Scheulke Report, including witnesses who focused on the Murkowski
legislation. The House Judiciary Committee held a single hearing primarily focusing on the Scheulke
Report. No further action took place.
24.
Rapid DNA Act of 2015
On February 5, 2015, Representative James Sensenbrenner (R-WI) introduced H.R. 320, the Rapid DNA
Act of 2015. It amends the DNA Identification Act of 1994 to require that the FBI advisory board include
members from federal, state, and local law enforcement agencies, development of standards to be
issued by the board and FBI Director, and other steps. H.R. 320 has 13 cosponsors and was referred to
the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. The Subcommittee held
a hearing on H.R. 320 on June 18, 2015. Links to the hearing testimony and its webcast are posted at:
http://judiciary.house.gov/index.cfm/hearings?ID=D0BA7F77-BBB6-42A1-89B4-B77A9B3CE68F.
25.
Grand Jury Reform Act of 2015
Representative Hank Johnson (D-GA) introduced H.R. 429, the Grand Jury Reform act of 2015 on
February 5, 2015. H.R. 429 would amend federal Byrne/JAG grant requirements to require state and
localities to adopt a specified notice and hearing process that includes appointment of a special
prosecutor whenever a death results from the use of deadly force by a law enforcement officer. H.R.
429 has 31 cosponsors and has been referred to the House Judiciary Committee.
26.
Military Sex Offender Reporting Act of 2015
Senators Richard Burr (R-NC) and Claire McCaskill (D-MO) introduced S. 409, the Military Sex Offender
Reporting Act of 2015 on February 5, 2015. S. 409 would amend the Sex Offender Registration and
Notification Act of 2006 to require the Secretary of the Army to inform the Attorney General of persons
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required to register as sex offenders. S. 409 has 16 cosponsors and has been referred to the Senate
Committee on Armed Services.
27.
Veteran’s Justice Act
On March 16, 2015, Representative Richard Nugent (R-FL) introduced the Justice and Mental Health
Collaboration Act of 2015, H.R. 731. It would amend and reauthorize the Mentally Ill Offender
Treatment and Crime Reduction Act of 2004 and would authorize the Attorney General to award grants
to establish or expand veterans treatment court programs, and to support a range of coordinated
services for qualified veteran offenders, including mental health services in prison facilities and services
aimed at supporting post-release transition to the community. H.R. 731 has 39 cosponsors and has
been referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security.
28.
Stop Militarizing Law Enforcement Act
The Stop Militarizing Law Enforcement Act, H.R. 1232, was introduced on March 4, 2015 by
Representative Hank Johnson (D-GA). H.R. 1232 would restrict the Department of Defense’s (DOD’s)
authority to transfer excess personal property to state and local law enforcement and remove DOD’s
authority to transfer property for counter-drug activities. H.R. 1232 has 49 cosponsors and has been
referred to the House Committee on Armed Services.
29.
Legislation to Add a Federal Defender to the U.S. Sentencing Commission
H.R. 1251, an act to add a Federal defender representative as a nonvoting member of the United States
Sentencing Commission was reintroduced on March 31, 2015, by Representatives Bobby Scott (D-VA)
and Trey Gowdy (R-SC). The bill currently has one cosponsor and has been referred to the House
Judiciary Committee. The SAFE Justice Act, H.R. 2944, also includes a provision to add a Federal
defender as a nonvoting member of the United States Sentencing Commission.
30.
National Criminal Justice Commission Act
Legislation to authorize a national commission on criminal justice was reintroduced in the 114th
Congress earlier this year. In the Senate, Senator Gary Peters (D-MI), Lindsey Graham (R-SC) and John
Cornyn (R-TX) introduced S. 1119 on April 28, 2015. S. 1119 currently has 20 cosponsors and has been
referred to the Senate Judiciary Committee. Identical House legislation was introduced on May 14, 2015
by Representative Ted Deutsch (D-FL) as H.R. 2330. H.R. 2330 currently has seven cosponsors and has
been referred to the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and
Investigations.
31.
Fair Sentencing Clarification Act
Representative Bobby Scott (D-VA) introduced the Fair Sentencing Clarification Act of 2015, H.R. 1252,
on March 31, 2015. H.R. 1252 would clarify that the amendments to federal law made by the Fair
Sentencing Act of 2010 regarding crack cocaine offenses are to be applied to pending cases and
retroactively to cases that are no longer pending. H.R. 1252 has been referred to the House Judiciary
Committee. The substantive provisions proposed in H.R. 1252 have been incorporated in H.R. 2944, the
SAFE Justice Act of 2015, and similar provisions are included in H.R. 3713, the Sentencing Reform Act of
2015, and S. 2123, the Sentencing Reform and Corrections Act of 2015.
32.
Prisoner Incentive Act of 2013
On March 31, 2015, Representative Bobby Scott (D-VA) also introduced H.R. 1253, the Prisoner Incentive
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Act of 2015. H.R. 1253 would increase earned good time for federal prisoners from 47 days per year to
54. H.R. 1253 has been referred to the House Judiciary Committee. The substantive provisions of H.R.
1253 have been incorporated in H.R. 2944, the SAFE Justice Act of 2015.
33.
Fairness in Cocaine Sentencing Act
H.R. 1255, the Fairness in Cocaine Sentencing Act of 2015, was introduced by Representative Bobby
Scott (D-VA) on March 31, 2015. H.R. 1255 would amend federal criminal law to treat powder and crack
cocaine quantities on an equal basis, or a 1:1 ratio. H.R. 1255 has one cosponsor and been referred to
the House Judiciary Committee.
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