The nation has reached a consensus that our current mandatory minimum sentencing laws are neither necessary to ensure public safety nor cost-effective. A recent poll revealed that 77 percent of the public, including 71 percent of Republicans, support repealing mandatory minimums for nonviolent drug offenders. This support is well justified. Over the past decade, numerous red and blue states around the country have repealed or reformed their mandatory minimum laws and experienced decreases in both their crime and incarceration rates.

In Washington, D.C., we were gratified to see two bipartisan sentencing reform bills introduced in the U.S. House of Representatives and U.S. Senate, the Sentencing Reform Act (H.R. 3713) and the Sentencing Reform and Corrections Act (S. 2123). These bills take a step in the right direction and contain some provisions we wholeheartedly support, including the provision that applies the Fair Sentencing Act retroactively.

As we have reflected on the bills, however, and tried to determine their likely impact on past and future offenders, public safety, and the federal prison budget, we have concluded that these proposals fail to match the overwhelming support for reform that can be found across the political spectrum. As we said when the Sentencing Reform Act was introduced, we think Congress can do better – and that the American people want and deserve more reform. We have already suggested numerous specific improvements to the House bill.

In the days and weeks ahead, we plan to educate the public and members of Congress about our concerns with the bills and suggest areas where we think further reform and improvement are warranted. Currently, one or both of the bills fails to:

• Avoid new mandatory minimum sentences. A meaningful sentencing reform bill isn’t just one that does more good than harm – it is one that moves America in the direction of a fair and individualized sentencing system in which punishments fit the crime and the individual. Mandatory minimums fail to achieve this goal. Both bills create new mandatory minimum sentences that are likely to subject potentially significant numbers of people, especially racial minorities, to harsh, expensive, one-size-fits-all sentences. Congress should be eliminating mandatory minimum sentences, not creating new ones.

• Address the special needs of the addicted, mentally ill, veterans, and domestic abuse survivors. Courts currently have no flexibility to adjust or disregard mandatory minimum sentences for offenders whose crimes were the result of untreated addiction, combat-related trauma, mental illness, or trauma or coercion resulting from domestic abuse. Less imprisonment and more access to treatment is more cost-effective and more likely to empower these people to lead successful, crime-free lives. States have embraced this approach, as should Congress.
• Focus prison resources on kingpins and major drug dealers. Under current law, low-level offenders face kingpin-size mandatory minimum sentences if it can be said that they were part of a conspiracy. Minor dealers are held accountable for all the drugs and guns possessed and sold by everyone involved in the crime, regardless of whether they assisted with or even knew of these activities. For example, addicted girlfriends and wives of drug dealers who used but did not sell drugs receive the same sentences as their more culpable drug-selling partners. Allowing courts to give more serious penalties to more serious offenders and lesser penalties to minor offenders is just common sense.
• Avoid unfair limitations on who qualifies for relief. The House and Senate bill would both wisely apply the Fair Sentencing Act and other mandatory minimum reforms retroactively based on the sound principle that a prisoner should not be punished more harshly simply because he made his mistake before Congress recognized its own. However, fairness demands full retroactive relief for all qualifying offenders, which the House legislation currently fails to provide. Full and unlimited retroactivity increases respect for the justice system without jeopardizing public safety. Courts should be able to review each case individually, look at the person’s full criminal history and behavior in prison, and grant relief only if the person is not a public safety risk. Arbitrarily and categorically excluding certain people from retroactivity will lead to litigation over who qualifies, decrease respect for reform, and waste taxpayer dollars by keeping some people in prison longer even though they are not dangerous.
• Focus mandatory minimum sentences on gun use during a crime. Under current law, mere presence of even a lawfully-owned gun is enough to subject people to harsh mandatory minimum drug and gun possession sentences. The law should give courts flexibility to distinguish between those who possess guns and those who use guns to commit crimes.

Mandy Martinson is one of hundreds of cases FAMM has profiled over the years that demonstrates the absurdity and cruelty of one-size-fits-all sentences. Ms. Martinson, a 28-year-old, first-time, nonviolent drug offender, was sentenced to a mandatory minimum term of 15 years in federal prison, despite her judge’s conclusion that she was an addict on the road to recovery and posed no risk of reoffending. Her sentence was longer than the average federal sentences given to rapists and racketeers.

Neither the House nor Senate bill would fix Mandy Martinson’s sentence. She personally would not receive relief from the bill’s retroactive provisions, and a future offender who committed the same crime with the same facts today would get the same unjust, counterproductive mandatory sentence. It is difficult to claim that any proposal that does not fix abuses like this represents meaningful reform.

FAMM does not seek to derail these bills – or any bills – that move in the right direction. We simply believe the time is right for more meaningful reform, reform that improves public safety, saves taxpayers money, and restores the bedrock principle that individuals should be punished as individuals.

We believe the public wants and deserves better reform. To that end, FAMM will continue working with all members of Congress and other advocates to improve these laudable efforts.