The Real Cost of Prisons Weblog

The bottom line: H.R. 1528 (link to our reports on it here) lies dormant and we understand it will not be taken up by the House Judiciary Committee or the full House. The Senate does not have a comparable bill.

Prediction: We understand the Department of Justice is finalizing a legislative proposal to reinstate mandatory guidelines. Colloquially known as soft-top guidelines, they would make the tops of the guidelines advisory but not the bottoms. That would make it very difficult for judges to sentence below a guideline range while permitting judges to increase sentences.

The other Booker-fix: mandatory minimums everywhere

While Booker-fix legislation was not considered in 2005, sentencing conservatives in the House of Representatives used the vacuum to introduce a series of bills that included many new mandatory minimums and some new crimes. According to one Republican, Rep. Randy Forbes (R-Va), who introduced a harsh anti-gang measure, the Supreme Court's decision in Booker made the many and increased mandatory minimums in his bill necessary. If the guidelines are not mandatory, he said, then there must be mandatory minimums to fill the gap.

Here are some of the bills we saw this session:

H.R. 1279, the Gang Prevention and Community Protection Act of 2005, created many new federal crimes, raised existing mandatory minimums, created 24 new ones and rewrote the definitions of "crime of violence" and criminal street gang" in ways designed to radically alter the federal criminal code. Though 21 Republicans joined many Democrats to defeat the bill, it passed the House.

Meanwhile, the Senate was preparing to consider S. 155, The Gang Prevention and Effective Deterrence Act of 2005, which contained fewer but nonetheless serious new mandatory provisions. Before the Senate Judiciary Committee could take it up, the bill was essentially withdrawn by Sen. Diane Feinstein (D-Ca) who then sought to develop support for a substitute measure.

The bottom line: Congress did not pass new gang legislation this year.

Prediction: We expect to see a new gang bill introduced in the Senate that while not as harsh as the current bill, will contain changes we will oppose.

H.R. 1751, Secure Access to Justice and Court Protection Act, was introduced in response to high profile attacks against judges. It contained new mandatory penalties for a variety of threatening and harmful acts. The House passed the bill after several Republican members were successful in removing some of the mandatory penalties. The Senate's bill, S. 168, the Court Security Improvement Act, contains none of the mandatory sentencing provisions of the House version. It has not been voted on by the Senate Judiciary Committee.

The bottom line: Congress did not pass a court security bill this year.

Prediction: The Senate may take up a court security bill in the New Year, but it is likely to be very different from the House version.

H.R. 3132, Protecting Children's Safety Act of 2005, included many new mandatory penalties for a variety of crimes against or involving children and included new minimum penalties for other conduct, such as failure to register as a sex offender and internet offenses. The House approved H.R. 3132 and sent it to the Senate.

The Senate Judiciary Committee was considering several similar bills before finally settling on S. 1086, including Title III, the Jetseta Gage Prevention and Deterrence of Crimes Against Children Act of 2005, containing many mandatory minimums for violent crimes and sex offenses against children but fewer than in the House bill. The Senate Judiciary Committee voted to send the bill to the Senate floor. It has not been voted on.

The bottom line: Congress did not pass new sex crimes legislation this year.

In the meantime, Chairman Sensenbrenner introduced a bill containing leaner versions of the gang, court security and sex crimes bills that the House had already passed. A number of the mandatory minimums called for in the original bills were removed from the omnibus bill, presumably to make it more palatable for the Senate, which does not have the same propensity for mandatory minimums. It was believed by some that the House might take up H.R. 4472, the Child Safety and Violent Crime Reduction Act, before it adjourned for the year. However, the House of Representatives had too much other business to take care of.

The bottom line: The House did not vote on H.R. 4472.

H.R. 3889, the Methamphetamine Epidemic Elimination Act of 2005, rode the wave of methamphetamine hysteria sweeping the country. In its original form, the bill would have changed current penalties so that a mere three grams of methamphetamine would trigger a five-year sentence and five grams a 10-year one. A bi-partisan effort on the House Judiciary Committee, however, produced a much-improved, though not perfect bill. The compromise did not contain any new mandatory minimums. It passed the Judiciary Committee and instead of going to the floor, was "attached" with the Senate Judiciary's concurrence, to the Patriot Act. The new Patriot Act was not passed by Congress this year; instead the current Patriot Act, without the methamphetamine section, was reauthorized for six months.

The bottom line: Congress did not vote on a methamphetamine bill.

H.R. 4437, the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005, emerged suddenly in the House Judiciary Committee, sponsored by Rep. James Sensenbrenner in the final weeks of the year. The bill was extremely controversial, not due to its mandatory sentencing provisions that would have targeted not only those illegally in the country, but those who helped them, even for the best of reasons. Instead Republicans and Democrats were internally divided over the breadth of the bill, and its failure to address the status of current migrants or provide for a guest worker or status adjustment program. Nonetheless, the House passed the bill (see here) in the final days of the session but the Senate did not take it up. The Senate considered no immigration bill of its own this year.

The bottom line: Congress did not pass immigration reform.

Prediction: The Senate will hold hearings about immigration reform in the spring; however, it will not produce a bill even remotely like the House bill.

Conclusion: 2005 was a remarkable year in Congress as the Supreme Court struck down mandatory guidelines and the House responded with a host of bills laden with mandatory minimums. Some House Republicans played an important role in ameliorating some of the harshest provisions. 2006 is already shaping up to be interesting as we wait to see what the Justice Department plans to do about Booker.