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What you should know about the surprisingly promising push to shrink federal prisons

The Smarter Sentencing Act could open more of these doors.
The Smarter Sentencing Act could open more of these doors.
Justin Sullivan/Getty

Congress hasn't exactly covered itself in glory over the last few years. But there's at least one issue on which legislators are making real progress: criminal justice reform. And they've actually worked on a set of bipartisan bills aiming to reduce the nation's federal prison population. The most promising one is the Smarter Sentencing Act, written by Sen. Dick Durbin (D-IL) and Sen. Mike Lee (R-UT).

The Smarter Sentencing Act would halve the mandatory sentence for federal drug crimes — which account for half of the US' 200,000 federal prisoners. That would be the biggest reduction in prison sentences since the wars on drugs and crime escalated in the late 20th century. And while the federal prison population decreased slightly for the first time in decades in 2013, keeping that trend going is going to require a permanent reduction in how long new prisoners get sentenced to serve.

The bill has three components — one looking backward to current prisoners, and two looking forward to future ones. It would finish a job Congress started at the beginning of the Obama administration, by reducing the disparity between crack and powder cocaine sentences for current prisoners, in addition to new convictions. But it would also, and more importantly, take on a new set of sentencing reforms for future cases — sentencing drug offenders to half as long as they'd serve now.

1) Finish the job on crack-powder parity

Vials of crack cocaine.

New York Daily News via Getty Images

A vial of crack coaine. (New York Daily News via Getty Images)

Lee's office traces the current push for criminal-justice reform in the Senate back to 2010, when President Obama signed the Fair Sentencing Act — which reduced the disparity between sentences handed out for possession or distribution of crack cocaine, and sentences handed out for equivalent amounts of powder cocaine. (Crack still gets much longer sentences than powder, but not by a 100:1 ratio.)

But the Fair Sentencing Act was only a "front-end reform," in the words of criminal-justice experts: it only applied to people who were convicted after the law was signed. That meant that someone in prison today for selling crack in 1991 would serve more time than someone convicted of selling the same amount of crack in 2011.

The Smarter Sentencing Act closes the gap, by adding a "back-end reform" that would reduce the sentences of current prisoners. It would allow the 8,800 or so prisoners who are serving now-obsolete sentences under the Fair Sentencing Act to petition to get those sentences reduced, in line with current law.

2) Reduce mandatory minimums

Smarter Sentencing Act chart

The Smarter Sentencing Act doesn't cede Congress' power to set mandatory minimum sentences, as it's done since the 1980s. It just recognizes, in one Lee staffer's words, that "in a lot of cases, those mandatory penalties" from the 1980s and 1990s "seemed excessive in retrospect" — especially for drug crimes.

The bill basically cuts drug mandatory minimums in half: a first-time offender caught with 100 grams of heroin would be required to spend at least 2 years in prison, rather than 5. Someone with a prior drug conviction who gets caught with 50 grams of meth would have to spend at least 10 years in prison, rather than 20.

In all, the CBO estimates that about 250,000 prisoners would get released earlier over the next decade under the Smarter Sentencing Act. The Department of Justice, meanwhile, estimates that eight years after the bill is passed, the federal prison population will be about 50,000 smaller than it would be under current law. That's still more than current or planned federal prisons have the capacity to handle, but it's a big improvement.

3) Restore some judicial discretion

judge with gavel and order

A judge writes an order. (Andrey Burmakin)

The Smarter Sentencing Act also gives judges back a little more discretion to go against a mandatory minimum, so that a defendant who's clearly never going to commit another crime doesn't have to spend as long in prison as a career criminal.

Right now, in very particular cases, a judge is allowed to pull a "safety valve" and sentence someone to less than the mandatory minimum. But the current safety-valve requirements are so restrictive that they're essentially off limits to almost anyone with a prior criminal conviction. The Smarter Sentencing Act would expand the safety valve slightly: it would make it possible for the judge to pull it for a second offense, as long as the defendant had served a year or less in prison the first time around.

What it doesn't do

Since so many federal prisoners are serving time for drugs, cutting down drug sentences would have a pretty big impact. But most of the people in prison in the US are in state prisons, not federal ones. So there's only so much any federal law can do to reduce incarceration overall.

Many states have gotten out ahead of the federal government in reforming their sentencing laws, and some have reduced their incarceration rates. But last year, just as the federal prison population began to drop, the state population started ticking up again — including in some states that had passed criminal-justice reform laws in recent years.

What makes this especially tricky is that most state prisoners are serving time for violent crimes, not drug crimes. While some Democrats and some Republicans have gotten on board with the notion that drug sentences are too long, it's much more difficult to argue that violent criminals should spend less time in prison. But that's exactly what reformers need to argue if they're going to decrease the state prison population by as much as the Smarter Sentencing Act would reduce the federal one.

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