Former leaders within the Department of Justice and Drug Enforcement Agency, including Michael Mukasey and Bill Bennet,  have written a letter to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell asking them to defeat the Smarter Sentencing Act.

The signatories claim that “many of us once served on the front lines of justice.”

Response to the letter has been both swift and sardonic.  From Radley Balko at the Washington Post:

Ah, the “front lines.” Apparently, Bill Bennett (one of the signatories) wasn’t just feeding quarters into Vegas video poker machines as he demanded that other people go to prison for their vices . . . he was also ducking sniper fire.

The Smarter Sentencing Act has already passed the Senate Judiciary Committee by a 13-4 vote, and on May 7, Senate Majority Leader Harry Reid told John Gramlich of CQ Roll Call that he would soon be bringing the bill to the floor of the Senate for debate (paywall):

Asked whether he intends to bring committee-approved sentencing legislation to the floor soon, Reid said he has been consulting with the bill’s sponsor, Sen. Richard J. Durbin, D-Ill., and “the answer is yes.”

The Smarter Sentencing Act would cut in half many mandatory minimum sentences, as well as make recent legislation that closed some of the sentencing disparity between crack and powder cocaine retroactively applicable to those sentenced under the old system.

The group joins Michelle Leonhart, current head of the DEA, who came out against the bill earlier this month (although she apparently got a stern “talking to” and has dialed it back since then).

Many of the signatories to the letter have had a hand in making the United States the biggest prison state in the world, with 5% of the population and 25% of its prisoners. The US prison population has quadrupled since the 1980s, and almost half of those in federal prison are there for drug related crimes.

“We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety,” according to the letter.

Others disagree. “The truth is “tough” mandatory sentences have helped pushed federal prisons to nearly 140 percent of capacity resulting in scarce law enforcement resources being diverted to cover growing prison costs” says Matthew Mangingo in the Rockford Register Star.

It’s hard to know how to read the tea leaves on this one. Does it represent, as Doug Berman notes, “the final nail in the Smarter Sentencing Act’s coffin,” or is it a sign that there is enough momentum growing behind it that the group is finally taking it seriously?

At the very least it signals a conservative war over sentencing reform, which pits younger, more libertarian leaning Republicans like Ted Cruz and Rand Paul against the old drug warriors.

The text of the letter is below:

May 12, 2014

The Honorable Harry Reid
Majority Leader

The Honorable Mitch McConnell
Minority Leader

United States Senate
Washington, DC 20510

Re: Federal Criminal Sentencing Reform

Dear Majority Leader Reid and Minority Leader McConnell:

As former government officials who served in the war on drugs, we care deeply about our nation’s system of justice. During our tenure, we labored to see that justice was well served, the guilty punished and the innocent protected. We recognize the ongoing need to continue to improve how the nation deals with crime.

Significant components of our statutory framework for sentencing lie at the heart of our nation’s success in confronting crime. Collectively, these sentencing measures have helped substantially to reduce crime throughout our nation over the past thirty years. A series of laws, beginning with the Sentencing Reform Act of 1984, have dramatically lessened the financial and human toll of crime on Americans. Critical to these laws has been the role of mandatory minimum sentencing and the exercise by Congress of its Constitutional prerogative to establish the minimum of years of detention served by a federal offender. While federal judges are properly entrusted with great discretion, strong mandatory minimums are needed to insure both that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences. In addition, and of central importance, prosecutors use strong mandatory minimums, along with safety-valves built into the current system, to induce cooperation from so-called “smaller fish,” to build cases against kingpins and leaders of criminal organizations.

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals. We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent. We are deeply concerned about the impact of sentencing reductions of this magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a
mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

Sincerely yours,

William P. Barr
Former United States Attorney General

Michael B. Mukasey
Former United States Attorney General

Samuel K. Skinner
Former White House Chief of Staff and Former United States Attorney, Northern District of Illinois

William Bennett
Former Director of the White House Office of National Drug Control Policy

John P. Walters
Former Director of the White House Office of National Drug Control Policy

Mark Filip
Former United States Deputy Attorney General

Paul J. McNulty
Former United States Deputy Attorney General and Former United States Attorney, Eastern District of Virginia

George J. Terwilliger III
Former United States Deputy Attorney General and Former United States Attorney, District of Vermont

Larry D. Thompson
Former United States Deputy Attorney General and Former United States Attorney, Northern District of Georgia

Peter Bensinger
Former Administrator, Drug Enforcement Administration

Jack Lawn
Former Administrator, Drug Enforcement Administration

Karen Tandy
Former Administrator, Drug Enforcement Administration

Greg Brower
Former United States Attorney, District of Nevada

A. Bates Butler III
Former United States Attorney, District of Arizona

Richard Cullen
Former United States Attorney, Eastern District, Virginia

James R. “Russ” Dedrick, Former United States Attorney, Eastern District, Tennessee and Eastern District, North Carolina

Troy A. Eid
Former United States Attorney, District of Colorado

Gregory J. Fouratt
Former United States Attorney, District of New Mexico

John W. Gill, Jr.
Former United States Attorney, Eastern District, Tennessee

John F. Hoehner
Former United States Attorney, Northern District, Indiana

Tim Johnson
Former United States Attorney, Southern District, Texas

Gregory G. Lockhart
Former United States Attorney, Southern District, Ohio

Alice H. Martin
Former United States Attorney, Northern District, Alabama

James A. McDevitt
Former United States Attorney, Eastern District of Washington

Patrick Molloy
Former United States Attorney, Eastern District, Kentucky

A. John Pappalardo
Former United States Attorney, Massachusetts

Wayne A. Rich. Jr
Former United States Attorney, Southern District, West Virginia

Kenneth W. Sukhia
Former United States Attorney, Northern District of Florida

Ronald Woods
Former United States Attorney, Southern District, Texas

**

The Smarter Sentencing Act is a bill whose time has come

There are nearly 7 million Americans in prison, jail or under government supervision right now.   It’s time to put aside partisan differences and come together to help millions of people who have lost the power to advocate for themselves.

What can you do to help?