Bipartisan support for two bills before the U.S. Congress could mean lower sentences for local federal defendants, but some defense attorneys say the bills don’t go far enough.
The bills, one in the House and the other in the Senate, are both called the Sentencing Reform Act of 2015 and focus primarily on mandatory minimums for drug offenders. As more people worry about the increasing population in federal prisons, a growing effort seeks to reduce the mandatory minimum sentences for certain offenses.
For instance, the Senate bill would end the automatic life sentence under the three-strikes rule and reduce it to 25 years. It also would lower the mandatory minimum sentence of 20 years to 15 years for felons with a prior drug conviction. More defendants also would be eligible for what’s known as a safety valve, which include certain circumstances that allow a judge to sentence a defendant to less than the mandatory minimum. The bills would allow all of these changes to be made retroactively.
However, the proposal also adds sentence enhancements for defendants who had a gun during drug trafficking crimes.
U.S. Rep. Pete Visclosky, D-Merrillville, did not comment on his stance on the proposal. U.S. Sen. Joe Donnelly said he would review the legislation.
“Our criminal justice system should effectively deter and punish criminals, keep dangerous offenders off our streets and allow judges and prosecutors to exercise appropriate discretion,” he said in an email.
David Vandercoy, a defense attorney and professor at Valparaiso University Law School, noted that the growing support for sentencing reform is likely because of the expensive costs of incarcerating so many people, which resulted from tougher drug penalties imposed in the 1990s.
“We’re out of space, basically,” he said. “It’s either build more prisons or empty some of what we have out.”
Jerry Flynn, executive director of Northern District of Indiana Federal Community Defenders, said he had high hopes earlier in the year, especially with so much support for sentencing reform.
“I don’t recall in my lifetime when there’s been this kind of support to reduce penalties,” Flynn said.
However, he hoped that the bills would get rid of mandatory minimum sentences completely and said he’s frustrated that the bill doesn’t go that far.
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“The general consensus from the federal defender community is people are very disappointed,” Flynn said.
In 2014, drug cases made up 27 percent of the federal criminal cases in the Northern Indiana district, which includes the courthouse in Hammond. That’s slightly less than the national average of 31.7 percent. For those who were sentenced last year with a drug trafficking charge, the average sentence was 69 months, a little less than the national average of 71 months.
Flynn has been a vocal critic of mandatory minimums, arguing that they can be overly harsh and don’t allow the judges who are familiar with the specifics of a case to make what they think is the best decision.
“(Mandatory minimums) disregard the idea that each crime and each defendant is different,” he said.
Flynn also argued that they give prosecutors too much power. Federal attorneys can threaten to charge someone with a count that comes with a mandatory minimum sentence as a bargaining chip in reaching a favorable plea deal, he said.
Former U.S. Attorney General Eric Holder issued a policy a few years ago directing federal attorneys to cut down on their use of such charges, but Flynn said he still sees defendants who face them on a regular basis.
Vandercoy said that even if the proposed bills did away with mandatory minimums, defendants could still face steeper sentences because of enhancements that can be added if they possessed a gun during a drug crime.
Vandercoy argued that the nature of the drug trafficking world, in which street gangs will often rob other drug dealers, means that most dealers carry a gun just for protection.
“The main problem is everyone’s got a gun,” he said, arguing that not all of those carrying guns are violent.
The enhancements can be added even if a gun wasn’t used. Because of this, any real effort at sentencing reform also needs to address these enhancements, he said.
Vandercoy said he’s working with one defendant seeking clemency who was sentenced to a mandatory 30 years consecutive to the rest of his sentence because someone else in his conspiracy possessed a gun with a silencer.
He also noted that many of the drug dealers are addicts who turn to selling drugs to buy more drugs.
“Nobody’s dealing with the bottom line that most of these people are addicted and that using the criminal justice system to lock these people up is kind of crazy,” Vandercoy said.
Flynn agreed that sentencing enhancements for guns are also a problem.
Although Flynn said he wants to see more done, he added that he doesn’t think the current effort is a waste of time. He does remain hopeful that the bill will continue to evolve.
“We’re hoping that a final version will emerge that will be better,” he said.