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Why We Can't Afford to Wait for Federal Sentencing Reform

With a limited legislative calendar this year, time is running out for the Sentencing Reform and Corrections Act -- a bipartisan bill to reduce drug penalties that have contributed to an 800% increase in the federal prison population since 1980.
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In his remarkable speech at Howard University, President Obama asked graduates, "If you care about mass incarceration... How are you pressuring members of Congress to pass the criminal justice reform bill now pending before them?"

With a limited legislative calendar this year, time is running out for the Sentencing Reform and Corrections Act -- a bipartisan bill to reduce drug penalties that have contributed to an 800% increase in the federal prison population since 1980.

If the legislation is adopted, at least 7,500 individuals locked up for harsh mandatory prison terms would be eligible for earlier release. Life without parole for third-strike drug offenses would be eliminated. Another 4,000 individuals each year would get relief from mandatory minimum sentences.

Yet, even though the bill represents the best chance in a generation to make significant changes in federal drug sentencing, some activists seem to be feeling the fierce urgency of next year. With Democrats poised to make gains in November, there's a school of thought that says it might be better to wait for bolder legislation.

It's an understandable impulse: the Sentencing Reform and Corrections Act is a compromise measure. It is not the bill that criminal justice reform advocates would have written. And it certainly would not end mass incarceration, which is the product of countless punitive policies across all levels of government.

But the legislation is undeniably a step in the right direction. More than 5,000 of the bill's beneficiaries -- about 80% of them African American -- are serving lengthy prison terms under discriminatory crack cocaine laws. Hundreds who are serving mandatory life sentences for a third drug offense could see their prison terms slashed to 25 years.

In addition to the direct impact, the bill would have a ripple effect throughout the criminal justice system. After Congress passed the Fair Sentencing Act of 2010 -- reducing the unfair sentencing disparity between crack and powder cocaine -- the U.S. Sentencing Commission revised its guideline penalties for crack. Three states followed suit. Passing the Sentencing Reform and Corrections Act, which is based on state-level reforms, would continue this virtuous cycle.

The bill is not perfect. For example, it would add two new mandatory minimums -- for interstate domestic violence that results in the death of the victim and terrorism -- which would apply in a handful of cases. The bill would also require judges to impose an additional sentence of up to five years -- or as little as a day -- for fentanyl, a synthetic drug commonly mixed with heroin. Federal law already provides mandatory minimum penalties for certain fentanyl offenses. While the potential impact of the proposed enhancement is unknown, only 13% of federal drug cases in 2015 involved heroin; the fentanyl penalties would apply in a subset of such cases.

Given the existing scale of incarceration, any new punitive measures are regrettable. But the test for a criminal justice reform bill -- indeed for any piece of legislation -- is not whether it is perfect, but whether it is better than the alternative.

If we wait until next year there is no assurance that a new administration would prioritize federal sentencing reform in its first term. Moreover, any reform achieved this year is not the end of the story. After Congress reduced the scale of the disparity between crack and powder cocaine in 2010, advocates pledged to keep pushing for reform. And now we have a chance to do so by making those changes retroactive to people convicted of crack offenses before the law changed.

Failure to move forward this year would risk the bipartisan cooperation that has been a hallmark of criminal justice reform in recent years. What would happen if the coalition of Senators who coauthored the sentencing reform measure -- including Chuck Grassley of Iowa, John Cornyn of Texas, Dick Durbin of Illinois, Pat Leahy of Vermont, and Cory Booker of New Jersey -- were to fall apart?

"There is a price to pay for rejecting the partial victories that are typically achieved through political activity," former Congressman Barney Frank wrote in his memoir. "When members of Congress defy political pressure at home and vote for a part of what you want, they are still taking a risk. Telling them you will accept only 100 percent support is likely to leave you with nothing."

While we don't know the future, we do know that Congress is poised to show that it can make progress on criminal justice reform in a bipartisan way this year. The Sentencing Reform and Corrections Act would not solve all the problems in the criminal justice system, but it would reduce punishment for thousands of individuals and, on balance, create a fairer and more effective system.

As President Obama said at Howard University, "Better is good, because you consolidate your gains and then you move on to the next fight from a stronger position."

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