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The Senate’s Criminal Justice Bill Would Lengthen Some Sentences — But Reduce Far More

The bipartisan Senate bill to reform the federal criminal sentencing system, which was unveiled Thursday, might look like a mixed bag to advocates of reduced sentencing for certain crimes. On the one hand, the bill reduces the length and scope of mandatory minimum sentences, long a goal of many advocates on both the right and left. On the other hand, it also introduces new mandatory minimums for crimes not previously covered.

But instituting mandatory minimums for those crimes would likely affect at most a few hundred people each year, according to 2014 data on the number of people who committed the offenses from the U.S. Sentencing Commission, a federal agency that collects crime and sentencing stats. Far more people are likely to get shorter sentences from just one retroactive provision in the bill if it is enacted.

The crimes that would have new mandatory minimums produce few convictions. They are interstate domestic violence — involving travel across state lines by an offender or victim — resulting in death or serious injury, or committed with a dangerous weapon; and providing goods or services to terrorists or proliferators of weapons of mass destruction.

Just 44 people were sentenced for interstate domestic violence last year, according to the Sentencing Commission’s 2014 Sourcebook of Federal Sentencing Statistics.1 And 162 people were sentenced for the category of crimes that includes arming or aiding terrorists.2

The commission’s numbers include some people whose crimes wouldn’t have been covered by the new mandatory minimums proposed in the Senate bill. That’s because the legislation doesn’t cover everyone who has violated the relevant federal statutes; it covers only a subset of the most serious offenders. For instance, not all interstate domestic violence results in death or serious injury or is committed with a dangerous weapon.

For that reason, the number of people who would have been affected by the bill if it were in effect in 2014 is smaller — far smaller, according to Molly Gill, government affairs counsel for Families Against Mandatory Minimums, an advocacy group that supports the bill but opposes the new mandatory minimums. She estimates that if the mandatory minimums were in place last year, they would have affected just 22 people for interstate domestic violence and just eight people for aiding or arming terrorists.3

By contrast, thousands more people could benefit from a different provision of the bill. It retroactively applies the 2010 Fair Sentencing Act, which narrowed the gap in sentencing guidelines between offenses involving crack cocaine and those involving powder cocaine. (Crack sentences, which disproportionately affect black prisoners, were significantly higher than those for powder.) Making the 2010 law retroactive would give approximately 6,500 people convicted of crack offenses who remain in prison the right to file a motion for a reduced sentence — although the bill doesn’t mandate that courts grant the motion and some of the prisoners already are near the end of their sentences.4

Other provisions of the Senate bill also would probably affect relatively few people. For instance, the bill ends the practice of punishing juvenile federal prisoners with solitary confinement. There are just 33 juveniles in the federal prison system, according to the Federal Bureau of Prisons.

If the bill becomes law, these provisions will be vitally important for any juvenile prisoner who has been subject to solitary confinement or for someone being sentenced for interstate domestic violence. But as a group, they represent a small fraction of the total number of people immediately affected by the bill.

The estimates of how many people could be affected by several of the Senate bill’s provisions are only approximate; they’re far from definite, because the bill itself doesn’t specify how many people it would affect.

Gill and others couldn’t yet provide estimates for the impact of other provisions of the bill, which could take weeks. For instance, the bill also expands the number of prisoners convicted of non-violent drug offenses who can benefit from the so-called “safety valve” exempting them from mandatory minimums. It’s not yet clear how many more people would benefit. “Thousands” would, according to Ben Marter, a spokesman for Sen. Dick Durbin, an Illinois Democrat.

While the number of people who would be eligible for reduced sentences is in the thousands and dwarfs the number of people who would face new mandatory minimums, both groups represent a small percentage of the overall U.S. state and federal prison population of 1.6 million. About six out of seven prisoners are in state prisons, which aren’t covered by the bill.

Footnotes

  1. The new Senate bill covers some offenses under Section 2261(b) of Title 18 of the U.S. Code (Crimes and Criminal Procedure), which is covered by guideline 2A6.2. In 2014, 44 people were sentenced under that guideline.

  2. The bill covers some of the offenses defined by the International Emergency Economic Powers Act (Section 1705 of Title 50 of the U.S. Code), covered by guidelines 2M5.1, 2M5.2 and 2M5.3. In 2014, 162 people were sentenced under one of those guidelines.

  3. Gill said her estimates were based on several sources, including government reports and “congressional staff I trust.” I ran the numbers by communications aides and other staffers for the Senate Judiciary Committee and for senators who sponsored the bill, and four who got back to us — two representing Democratic senators and two representing Republicans — said the figures sounded right.

  4. In testimony to a House task force in July 2014, Patti B. Saris, chairwoman of the U.S. Sentencing Commission, said that if the Fair Sentencing Act were made retroactive, “8,829 offenders would likely be eligible for a sentence reduction, with an average reduction of 53 months per offender.” Some unknown number of those inmates have been released since then; 6,500 is an estimate of how many remain in prison. Democrat Dick Durbin of Illinois mentioned it on the Senate floor last week. In her testimony, Saris also said, “The commission estimates that 87.7 percent of the inmates eligible for a sentence reduction would be black.”

Carl Bialik was FiveThirtyEight’s lead writer for news.

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