What Do Barack Obama and the Koch Brothers Agree On? The Smarter Sentencing Act

It's time for people of courage to beat our partisan swords into ploughshares and come together to help millions of people who have lost the power to advocate for themselves.
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There aren't many things that Barack Obama, Eric Holder, the Koch Brothers, Grover Norquist, Ted Cruz and Sheldon Whitehouse agree on. One of those rare things is the Smarter Sentencing Act, a bill that has broad transpartisan both houses of Congress -- but is currently stuck there for no other reason than partisan gridlock.

Four years ago, a similar coalition came together when everyone agreed that drug sentencing disparities had a deeply unfair application that resulted in black and Latino offenders serving much longer sentences for possessing the same amount of crack cocaine than a white person who was more likely to possess powder cocaine.

Their efforts resulted in the passage of the Fair Sentencing Act, which President Obama signed into law in 2010. It did not, however, retroactively change things for people who were already serving draconian sentences under the old law.

The Smarter Sentencing Act would fix that problem as well as many other things that would dramatically reduce our seriously overcrowded prison population, which has quadrupled since the 1970s.

What the Smarter Sentencing Act Would Do

If passed in its current form (S. 1410), the SSA would do
  1. Halves the mandatory minimum sentences for many federal drug offenses.
  2. Expands the existing "safety valve" to apply to federal drug mandatory minimum sentences -- meaning judges have discretion over sentencing in more cases, and aren't forced to impose often draconian minimum sentences regardless of the circumstances.
  3. Makes the Fair Sentencing Act of 2010 retroactive. A 2013 report by the Urban Institute says that this alone would lead to $229 million savings over 10 years (PDF).
  • Addresses "Over-Criminalization": People violate laws every day they aren't even aware of. The SSA requires the DOJ and other federal agencies to compile lists of all federal laws and regulations, their criminal penalties, and the "mens rea" (intent) required to violate the law.
  • Adds new mandatory minimum sentences for sexual abuse, domestic violence and some terrorism offenses.
  • A recent report from Human Rights Watch details how drug offenders are currently forced to plead guilty by US Federal Prosecutors, "threatening them if they go to trial with sentences that, in the words of Judge John Gleeson of the Eastern District of New York, can be 'so excessively severe, they take your breath away.'[1] "

    The SSA could help many people currently facing an intractable judicial system by dramatically reducing mandatory minimums and giving judges more discretion.

    What chance does this bill have in a gridlocked Congress?

    What truly makes this bill unusual in this era of unprecedented partisanship is the amount of support it has from across the political spectrum in Congress. The Senate version of the bill (PDF), which recently passed the Senate Judiciary Committee by a vote of 13-5, was introduced by Senator Dick Durban (D-IL) and Senator Mike Lee (R-UT).

    Democrats on the Committee voted unanimously in favor of the bill after Attorney General Eric Holder personally encouraged them to support the bill.

    But much like the issue of marijuana reform, there seems to be a pronounced generational divide within the Republican party when it comes to support for the SSA. The average age of Republicans who voted in favor on the Judiciary Committee (Lee, Cruz and Flake) is 45 years of age. The average age of those opposed (Graham, Grassley, Sessions, Cornyn and Hatch) is 69.

    Who supports this bill?

    To say that supporters of the SSA normally have little in common would be an understatement:
    • The NAACP, Families Against Mandatory Minimums, Right on Crime, the Justice Fellowship, LEAP, the ACLU and a coalition of Christian leaders and church groups have called for reforming mass incarceration in the United States, and support the passage of the Smarter Sentencing Act.
    • Rick Perry and Grover Norquist, who recently co-penned an OpEd with Joan Blades of Mom's Rising calling for progressives and Tea Party members to come together and demand reform.
    • Attorney General Eric Holder, who testified in support of the SSA before the House Judiciary Committee on April 8, 2014 and said that passing the bill would save "billions" over the next ten years.
    • Former New York Police Commissioner Bernard Kerik, whose recent stint in prison has made him an outspoken convert for reform: "If we continue to incarcerate black men at the same rate we have for the last 30 years, 30 years from now, probably 75 percent of every black man in this country is going to be incarcerated...Is that what we want? Is that what the system was created for? The system is broken," he says.
    • The Charles Koch Institute, which recently sponsored a panel on the impact that incarcerating 25% of the world's prisoners is having on the country that only has 5% of its population: "A criminal conviction, even for a minor offense, hinders opportunity and advancement, can contribute to a breakdown in family structure, and can put a strain on community resources. All too often, the effects of incarceration propel former prisoners to commit another crime, creating a vicious cycle of recidivism."
    • Charles Koch's brother David, who has been a donor to Families Against Mandatory Minimums, a non-partisan group that is actively lobbying for the passage of the Smarter Sentencing Act.
    • Veterans groups, which support "sentence mitigation efforts for veterans imprisoned to excessively lengthy terms for offenses attributable to PTSD-related behaviors."
    • The Heritage Foundation, which recently wrote that "It's encouraging that, at a time when bipartisan consensus is difficult to come by, there is broad agreement that there are some problems with our federal criminal laws that ought to be addressed. Too many mandatory minimums for nonviolent drug offenses committed by low-level offenders do not serve the ends of justice and leave no room for mercy."
    Who opposes this bill?

    Behind the scenes, several law enforcement lobbying groups are actively working to defeat the bill. Many of these opposed the Fair Sentencing Act of 2010. Although the bill ultimately passed the Senate by unanimous consent, their efforts were successful in pushing for a compromise that reduced but did not completely get rid sentencing disparities between powder and crack cocaine.

    Others law enforcement groups, however -- like the Major Cities Chiefs Association, the International Union of Police Associations, the American Correctional Association, the International Community Corrections Association and the American Probation and Parole Association -- have come out in favor of the bill.

    The Smarter Sentencing Act is a bill whose time has come
    America only has 5% of the world's population, yet we are responsible for incarcerating 25% of its prisoner. There are nearly 7 million Americans in prison, jail or under government supervision right now. It's time for people of courage to beat our partisan swords into ploughshares and come together to help millions of people who have lost the power to advocate for themselves.

    What can you do to help?

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