But instead of considering another bill on yesterday's agenda, S. 619 by Sen. Leahy and Rand Paul, which would grant judges discretion in all cases to not impose a mandatory minimum sentence, the Committee declared their bill "held over."
In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.
The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible. It increases penalties for domestic violence offenses. It adds new mandatory minimum sentences for some terror and arms-related crimes.
Grassley didn't get everything he wanted. His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.
Durbin's amendment neutered the Safety Valve reform. The Safety Valve is currently one of two ways out from a mandatory minimum sentence (the other is becoming a cooperator for the government and ratting out others.) It currently applies to a very limited number of defendants -- those with no more than 1 criminal history point, who meet some other requirements. The intent in reforming the provision was to increase the number of offenders to whom it would apply.
As introduced, S. 1410, increased the application of the Safety Valve to include those in Criminal History Category II (defendants with up to 3 criminal history points.) But as a result of Durbin's Manager's Amendment yesterday, the reach of the safety valve will only increase to those with up to two criminal history points, which means those in Criminal History Category I and only half of those in Criminal History Category II.
Also, those with two criminal history points will face extra exclusionary provisions. For example, those with 2 criminal history points will still be ineligible if they have ever been convicted of a crime that involves the use or attempted use of force. So anyone with 2 points with a prior misdemeanor conviction for being in a bar fight is ineligible.
Examples of those who will have more than 2 points and see no safety valve relief: Someone with a DUI (1 point) and a probation violation (2 points) for not paying the fines or attending alcohol classes (which in many cases they couldn't do because their drivers' license was revoked and they couldn't get to the classes. Or because they got fired for not being able to get to work and had no money to pay for drug testing or classes or court costs.)
Also, anyone with any misdemeanor or one point violation, who was on bond for any offense, however minor, at the time of the commission of the drug offense for which they are now being sentenced. Being on bond at the time of the commission of the offense is 2 points.
Also excluded: Anyone with a felony conviction (3 points) committed or still on supervision within 15 years of the the drug offense for which they are now being sentenced.
To constitute reform, at a minimum, the Safety Valve needs to apply to those with 3 criminal history points. Otherwise, it's not appreciably different from current law.
When Leahy and Rand introduced their Safety Valve reform bill, S. 619 (which was held over yesterday) I predicted a watered-down version would pass. I was more optimistic about Holder's new Justice Department guidance memos. Both seem to be left in the dust.
The Leahy-Rand bill would apply to all mandatory minimums, not just drug offenses and apply regardless of the number of criminal history points.
1)General rule. Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
The mandatory minimum reductions are a step in the right direction. Two years is better than five, five is better than ten, and ten is better than twenty. I am grateful that my clients who are ineligible for the safety valve will face lower mandatory minimum penalties. But what is needed is for mandatory minimums to be eliminated, not reduced, and until they are, for judges to have the discretion to sentence below mandatory minimums for any reason they deem appropriate.
Another thing the Durbin bill is lacking is retro-activity for the newly reduced mandatory minimums. Which means, a lot of pending cases may face a logjam. I doubt I would advise a client to plead to a mandatory minimum count now, knowing this bill has hopes of passing -- unless the court agreed to stay sentencing until the bill was passed or defeated, which could take many more months.
Opposing Grassley's amendments were Sens. Patrick Leahy, D-Vt., Mazie Hirono, D-Hawaii, and Mike Lee, R-UT.
The amended bill passed by a vote of 13 to 5. All 10 Dems on the committee voted for the amended bill, as did Republican Sens. Ted Cruz of Texas, Jeff Flake of Arizona and Mike Lee.
If the majority of Committee Republicans weren't going to vote for the bill in the first place, why did so many Democrats vote for Grassley's amendments? Why did Durbin amend his own bill? Unless some of the Dems threatened to vote against the bill without amendments, the Dems had enough votes to pass the bill as introduced with no Republican support and no amendments. So long as Mike Lee, a co-sponsor of the Manager's Amendment voted for it, wouldn't it still be "bipartisan?"
Hopefully, the full Senate will strike Grassley's amendments. Penalties for sex offenders are already sky high, and while most sex offenses and domestic violence offenses are prosecuted in state court, offenses occurring on Indian reservations are charged in federal court, which means the increased punishment is more likely to target minorities, something the reforms were intended to reduce.
I don't have much confidence the full Senate will strike Grassley's amendments. There are more, not less, obstructionist, backwards-thinking Republicans in the Senate as a whole than on the Judiciary committee.
