Fatal flaws remain in revised leniency legislation for drug offenders

Team Leniency for Drug Felons, the bipartisan group of Senators that wants, among other things, to let thousands of federal drug felons out of jail, held a press conference today to announce its revised leniency legislation. The changes to the Senate bill that stalled late last year do little to improve it.

As Senator David Perdue, one of the Republican members of the Senate Judiciary Committee who stood tall against the bill last Fall, said today:

The bill’s definition of what constitutes a ‘serious violent felony’ creates a loophole that would allow these serious felons to slip through the system. As currently written, this bill would put thousands of dangerous felons back on the streets early, potentially endangering our families and communities.

Senator Jeff Sessions, who along with Senator Tom Cotton, has led the charge against this legislation, put out a detailed statement explaining why he opposes the revised version. Sessions stated:

The changes made to the criminal sentencing bill fail to fix the bill and leave us with legislation that still would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates. While visiting concern on prisoners is an important and valuable act, we must understand a core responsibility of the government is safety of the public. The wise approach is to slow down and evaluate the trends before accelerating prison population decline.

Democrats don’t want to slow down. A vocal faction within the Party is demanding a jail break, and many congressional Dems apparently see releasing prisoners as good regardless of the consequences. Plus, President Obama needs this legislation for his legacy.

Why any Republicans are playing along with Obama, Dick Durbin, and company is a mystery.

Republicans normally worry about the consequences of actions pushed by the left as “compassionate.” They should take heed of this warning by Sessions:

Professor Matt DeLisi of Iowa State University testified before the Judiciary Committee that ‘releasing 1 percent of the current [federal prison] population would result in approximately 32,850 additional murders, rapes, robberies, aggravated assaults, burglaries, thefts, auto thefts, and incidents of arson.’ According to the Bureau of Justice Statistics 76.9 percent of drug offenders were re-arrested within 5 years (78 percent of possession offenders and 75 percent of trafficking offenders), with 25 percent of the recidivating offenses (for which they were arrested) being violent crimes.

Under current policy and law, we will soon see a 20 percent decline in the prison population, which would mean an increase of over 600,000 serious crimes.

Is Team Leniency okay with this? Apparently so.

Sen. Sessions then proceeded to a detailed analysis of the revised leniency for drug felons legislation. Here are a few highlights:

Under current law, any prior felony drug crime constitutes a qualifying underlying offense that leads to the imposition of these mandatory minimums. This bill, however, counts only drug trafficking and manufacturing-related crimes and violent crimes that carry a possible maximum 10-year term of imprisonment, for which the offender served at least 12 months (no time served is required under current law), as qualifying underlying crimes.

In effect, this provision requires a court to exclude drug trafficking convictions for crimes that resulted in significant prison sentences if the maximum term of imprisonment was less than 10 years.

According to the National Association of Assistant U.S. Attorneys, this provision “will redefine drug trafficking recidivism in many, if not most, federal cases from one prior drug trafficking conviction to at least 3 prior separate drug trafficking convictions.

In other words, a defendant will have had to have been apprehended and convicted of drug trafficking 3 separate times before he will actually be considered a drug trafficking recidivist in federal court upon his fourth separate drug trafficking conviction.”

The revised bill would further narrow eligibility for these mandatory minimums by limiting the universe of qualifying predicate offenses to only those for which the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense.

In other words, if a currently incarcerated federal drug trafficker was convicted of a previous drug trafficking offense and finished serving the sentence for that offense in 2001, then that drug trafficking offense would not count against him for purposes of this provision – this includes those currently in federal prison who would be eligible for early release due to the retroactive application of this provision.

Then, there is this provision, apparently designed to help criminals who are not even U.S. citizens:

The revised bill adds a provision to shorten mandatory minimums for drug traffickers who smuggle drugs into the U.S. by boat or submarine. These criminals have never been eligible for such leniency and are rarely if ever U.S. citizens.

This provision has already been tagged as the “Scarface” provision. Attorney General Loretta Lynch recently testified before the Senate Judiciary Committee that other than the Southern border, the majority of drugs come into the U.S. by maritime routes.

According to a 2014 study, in 2012, 80 percent of all illegal drugs smuggled into the U.S. arrived by sea. To illustrate, just last month, U.S. Customs and Border Protection intercepted a submarine carrying 5.5 tons of cocaine worth more than $1.9 million.

(Emphasis added)

In addition to foreign drug smugglers, illegal alien drug dealers, who make up more than 25 percent of the federal drug trafficking defendants convicted in FY2015 and who frequently are members of transnational gangs, also benefit under the revised legislation. Says Sessions:

The bill still provides leniency for illegal alien drug traffickers.

The criminal aliens who were responsible for the 2015 killing of Kate Steinle and the 2014 murders of California Detective Michael Davis, Jr. and Deputy Sheriff Danny Oliver had been earlier convicted for the same class of federal drug crimes that some in Congress now seek to roll back through this legislation.

U.S. Immigration and Customs Enforcement (ICE) union president Chris Crane wrote to Senate leaders in opposition to the legislation, noting that of the 6,600 BOP releases that occurred under prior sentencing guideline reductions, fully one-third were aliens.

The revised bill also expands the statutory “safety valve” to major drug traffickers, including those with multiple prior criminal convictions. The safety valve was designed to permit low-level participants in drug trafficking crimes with little to no criminal record to be eligible to avoid mandatory minimums, even if they choose not to cooperate with law enforcement. In the revised legislation, Team Leniency for Drug Felons converts the safety valve into an escape hatch.

Sessions notes:

The original bill limited the bill’s expanded safety valve to those who were not an importer/exporter, high-level distributor/supplier, etc. Under the revised bill, these individuals are now eligible for the bill’s expanded safety valve if a judge finds that they are “minor” or “minimal” participants under the sentencing guidelines.

This will require fact-specific inquiries, all of which are subject to dispute and will more than likely result in mini-trials, making it easier for drug traffickers to circumvent mandatory minimums.

Furthermore, under the original bill, those who have been convicted of drug trafficking and manufacturing-related crimes, and violent crimes that carry a possible maximum 10-year term of imprisonment, for which the offender served at least 12 months, are not eligible for this waiver. The bill has been revised so that only those convicted of the above-described violent crimes are ineligible.

This means that those convicted of drug-trafficking and manufacturing-related offenses are now eligible for this waiver.

The revised bill is being pushed as a compromise. To me it looks more like deck chair rearrangement in which for every chair moved from the sun to the shade, another is moved from the shade to the sun.

A true compromise bill would contain some changes to “mens rea” laws, to prevent folks from being convicted of “regulatory crimes” (including crimes against the Nanny State) that they don’t know they’re committing. Yet, the revised bill does not offer any such changes.

Senator John Coryn, a leading member of Team Leniency for Drug Felons, helpfully explained that mens rea reform was excluded from the Senate measure because Senate Democrats don’t favor it. Republican Senators should make it clear that they don’t favor releasing major drug felons, including violent ones, at a time when crime is rising and a drug epidemic is plaguing communities all over America.