The Courts and Congress - Annual Report 2015

Proposed Changes in Sentencing Laws

Several bipartisan bills were introduced in the first session of the 114th Congress that would affect the federal criminal justice system. Congress is considering legislation that would affect both “front-end” sentencing issues (e.g., reforming mandatory minimums, expanding the safety valve) and “back-end” legislation (e.g., accelerating an inmate’s release from custody). For more than 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimum sentencing provisions, and has supported measures for their repeal or to ameliorate their effects.

On the front end, bills have been introduced to expand the safety valve (18 U.S.C. § 3553(f)) to allow more defendants to be sentenced below an applicable mandatory minimum penalty, lower mandatory minimum penalties in certain drug offenses, and make the “Fair Sentencing Act of 2010” (which lowered penalties in crack offenses) applicable to inmates who were sentenced before the Act was passed. The Judicial Conference supports many of these front-end reforms, notwithstanding how they might impact the Judiciary’s resources. For example, making the “Fair Sentencing Act of 2010” retroactive would result in thousands of additional inmates petitioning the courts for sentence-reduction hearings. Shorter sentences also will result in inmates commencing terms of supervised release sooner than originally forecast.

On the back end, bills have been introduced that would require the Bureau of Prisons (BOP) to develop a dynamic risk/needs assessment along with a system of earned credits that inmates could use to shorten their prison stays. Inmates released early would be placed in home confinement or on a newly created term of “community supervision” and remain in BOP’s custody but be supervised by probation officers. Historically, the Judicial Conference has not taken positions on “back-end” or prison-reform measures like these, although the Conference does oppose provisions that would require judges to perform duties traditionally performed by executive branch officials in deciding where inmates serve their sentences.

Sentencing Reform and Corrections Act of 2015 

On October 1, 2015, Senate Judiciary Committee Chairman Charles Grassley (R-IA), introduced S. 2123, the “Sentencing Reform and Corrections Act of 2015” with a bipartisan coalition of nine co-sponsors, seven of whom sit on the Senate Judiciary Committee. S. 2123 would affect federal criminal judicial administration in numerous ways, such as:

• Broadening and targeting mandatory minimum sentences for prior drug felons. This reform would be retroactive. The Conference had no position on its retroactivity;
• Broadening the existing safety valve to include offenders with up to four criminal history points, and creating a second safety valve for certain drug offenders for whom the existing 10-year mandatory minimum would still apply, reforms the Conference supports;
• Eliminating “stacking” under Section 924(c) of U.S.C. 18 by clarifying that the additional consecutive penalties only apply to true repeat offenders rather than to multiple counts charged in the same indictment, and reducing its enhanced mandatory minimum from 25 years to 15 years, reforms the Conference supports. This reform would be retroactive, and the Conference had no position on its retroactivity;
• Applying the "Fair Sentencing Act of 2010" retroactively, which the Conference supports;
• Reducing the enhanced mandatory minimum for armed career criminals from 15 years to 10 years, which the Conference supports. This reform would be retroactive and the Conference had no position on its retroactivity.
• Creating new mandatory minimum sentences for interstate domestic violence and for the provision of goods or services to terrorists and for the proliferation of weapons of mass destruction. The Conference opposes mandatory minimum sentences.

Regarding back-end sentencing reform, S. 2123 generally incorporates elements of the “CORRECTIONS Act” (S. 467), which was introduced this Congress. S. 2123 would:

• Create a system of “parole” for juveniles, whereby certain offenders who were convicted as adults for an offense committed before they turned 18 and who have served 20 years in prison could petition a court to be released and re-sentenced to a term of supervised release of at least five years. As a mandatory minimum term of supervised release, the Conference opposes this provision.
• Allow juveniles who were convicted in federal court of nonviolent crimes to petition to have those records sealed and expunged.

The Conference also opposes the provisions of S. 2123 that would require judges to perform duties traditionally performed by executive branch officials in deciding where inmates serve their sentences. This concept is sometimes referred to as “judicial parole.”

On October 20, 2015, Director Duff sent a letter to Chairman Charles E. Grassley (R-IA) and Ranking Member Patrick J. Leahy (D-VT) (who is an original co-sponsor of S. 2123) expressing the Judiciary’s views on S. 2123, and attaching the Conference’s draft criminal judicial administration legislation. On October 22, Director Duff also sent a clarifying letter to Grassley and Leahy in response to congressional staff questions regarding the Conference position on “stacking” under Section 924(c). S. 2123 passed the Senate Judiciary Committee on October 22 by a vote of 15 to 5.

On October 8, 2015, a bipartisan coalition led by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers Jr. (D-MI) introduced H.R. 3713, the “Sentencing Reform Act of 2015.” With minor differences, H.R. 3713 offers the same front-end sentencing reforms as S. 2123 but without any new mandatory minimums, although it does contain sentencing enhancements for trafficking in heroin cut with fentanyl or for trafficking in fentanyl disguised as heroin. H.R. 3713 does not contain any of S. 2123’s back-end reforms; the House is expected to address “prison reform” separately. On November 13, 2015, Director Duff sent a letter to Goodlatte and Conyers regarding the Judiciary’s views on H.R. 3713. H.R. 3713 passed the House Judiciary Committee unanimously by voice vote on November 18, 2015.

Cameras in the Courtroom Legislation and District Court Pilot Project

A number of bills have been introduced in the 114th Congress related to permitting cameras in federal courts. The most comprehensive bill, S. 783, the “Sunshine in the Courtroom Act of 2015,” was introduced in March 2015 by Senators Charles E. Grassley (R-IA) and Chuck Schumer (D-NY), along with seven additional cosponsors. This bill is similar to a measure introduced in the House, H.R. 917.

S. 783 would grant the presiding judge in all federal courts, including the Supreme Court, the discretion to allow cameras in the courtroom while protecting the identities of witnesses and jurors when necessary or upon request. It also prohibits media coverage of private conversations between clients and counsel, between opposing attorneys, and between counsel and the presiding judge. The bill contains a three-year sunset provision, requiring Congress to evaluate how media access is impacting the Judiciary. 

Other bills, such as H.R. 94 and S. 780, both titled the “Cameras in the Courtroom Act,” relate to the televising of Supreme Court proceedings. H.R. 3723, the “Eyes on the Courts Act of 2015,” provides for media coverage (photographing, electronic recording, broadcasting, televising, or streaming in real time or near-real time on the Internet) in appellate courts of the United States—any circuit court of appeals and the Supreme Court of the United States.

The Judicial Conference strongly opposes bills that would allow electronic media coverage and broadcasting of federal trial court proceedings. The Conference also opposes legislation that would permit the use of cameras by any panel in any court of appeals, rather than allowing that decision to be made first by each court of appeals, as is the present practice. The Conference does not speak for the Supreme Court on the issue of cameras or other policy matters.

Beginning July 2011, the Judiciary conducted a pilot project to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings. Fourteen federal trial courts participated in the pilot, the data collection portion of which concluded July 18, 2015. As part of this pilot, the Judicial Conference asked the Federal Judicial Center (FJC) to study the impact of video recording of district court proceedings and their publication. The FJC study will be presented to the Judicial Conference Committee on Court Administration and Case Management.

Inspector General Legislation

In May 2015, Senate Judiciary Committee Chairman Charles E. Grassley (R-IA) introduced S. 1418, the “Judicial Transparency and Ethics Enhancement Act of 2015.” The bill would create an inspector general for the Judicial Branch, who would be appointed and removed by the Chief Justice of the United States, in consultation with Congress. Among other duties, the inspector general would conduct investigations of alleged misconduct by judges and justices, conduct and supervise audits and investigations, prevent and detect waste, fraud, and abuse, and recommend changes in laws or regulations governing the Judicial Branch.

The Judicial Conference has strong, longstanding opposition to the imposition by Congress of an inspector general for the federal Judiciary. An inspector general would jeopardize the independence of the Judicial Branch and would not significantly improve existing audit, oversight, and accountability functions, nor would it improve upon the statutory judicial conduct procedures and Constitutional provisions already in place. (See Accountability Section of this Report.)

Class Action Legislation

In February 2015, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on issues arising in class action litigation on the 10th anniversary of the passage of the Class Action Fairness Act. One of the concerns raised at the hearing was the fact that class actions are being allowed to proceed before there has been a showing that all members of the class actually share a comparable injury.

In April 2015, Representative Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee, introduced H.R. 1927 “to prevent the certification of inflated classes that lump large numbers of class members who are uninjured or minimally injured in with class members who have suffered injuries or more significant injuries.” Opponents of the legislation contend it would raise costs to the point where most class action litigation would be very difficult if not impossible to pursue. They also noted that the bill would circumvent the Rules Enabling Act process for amending the federal rules. The Judicial Conference has not taken a position on the legislation.