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Conservative members of the Senate Judiciary Committee couldn't rally enough support at an Oct. 22 markup to kill the retroactivity component of a sweeping bipartisan proposal that aims to reduce harsh mandatory minimum sentences for low-level federal offenders.
Presidential hopeful Sen. Ted Cruz (R-Texas) was blocked by a 15-5 vote from amending S. 2123, the Sentencing Reform and Corrections Act of 2015, with a provision that would have limited its application to convictions occurring on or after the date of the bill's enactment.
The committee later passed the legislation by the same 15-5 tally and the bill is now headed to the Senate floor.
Cruz warned his fellow committee members that “we can expect to be directly held accountable by our constituents” when violent criminals are released early and commit more crimes.
But supporters of the retroactivity component didn't think this was a very likely scenario. They stressed that resentencing isn't automatic and only comes into play after a judge has considered all the circumstances, including public safety and impact on the victim.
They also suggested that the bill would be dead-on-arrival if there was no retroactivity component.
“Eliminating retroactivity eliminates the moral imperative of the bill,” ranking committee member Sen. Patrick Leahy (D-Vt.) said.
A similar amendment on retroactivity introduced by Sen. David Perdue (R-Ga.) failed by the same margin, and Sen. Jeff. Sessions (R-Ala.) lost his bid to tack on an amendment that would've made the reform bill inapplicable to “any individual convicted of an offense involving heroin.”
The proposal reduces mandatory minimum penalties for repeat drug offenders who weren't involved in violent felonies and gives low-risk offenders who are already serving harsh sentences a chance to argue that they should be resentenced under the more lenient standards.
It also makes retroactive the provision of the Fair Sentencing Act of 2010 that eliminated the sentencing disparity between powder and crack cocaine offenses.
Senators voting in favor of the legislation included:
Grassley (R-Iowa); Graham (R-S.C.); Cornyn (R-Texas); Lee (R-Utah); Flake (R-Ariz.); Tillis (R-N.C.); Leahy (D-Vt.); Feinstein (D-Cal.); Schumer (D-N.Y.); Durbin (D-Ill.); Whitehouse (D-R.I.); Klobuchar (D-Minn.); Franken (D-Minn.); Coons (D-Del.); and Blumenthal (D-Conn.)
Those opposed included:
Hatch (R-Utah); Sessions (R-Ala.); Cruz (R-Texas); Vitter (R-La.); and Perdue (R-Ga.)
The bill isn't all about leniency, however. It raises the statutory penalty for the unlawful possession of a firearm by a convicted felon and certain other offenders from 10 to 15 years. It also sets out new mandatory minimums for those convicted of “interstate domestic violence” and “certain export control offenses.”
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said that this bill is a success because it flowed from compromise. “None of the co-sponsors got everything they wanted,” he said.
The committee held a public hearing Oct. 20 in which a number of experts and advocates weighed in on the bill's merits and shortcomings (98 CrL 76, 10/21/15). A companion bill has been introduced in the House of Representatives (98 CrL 53, 10/14/15).
There were no less than 20 amendments up for consideration, but only three of them were brought to a vote.
One significant recommendation that wasn't put to a vote was a proposal by Sen. Orrin G. Hatch (R-Utah) that would create a default mens rea requirement that comes into play when federal criminal statutes have a weak or nonexistent intent requirement.
But Hatch made clear that he hadn't given up.
“I want to reserve the right to make this amendment on the Senate floor,” Hatch said, “because this issue is a priority for me.”
Sen. Grassley told Hatch there was nothing wrong with the substance of the amendment but that he couldn't support it at this time lest he undo the “careful compromise” that led to the bill in its current form.
“Some of us are going to be in the uncomfortable position of opposing amendments that we would otherwise agree to because it would dismantle the negotiated package,” Sen. John Cornyn (R-Texas) said.
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