When both the nation’s top justice official ― Attorney General Eric Holder ― and Supreme Court Justice Anthony Kennedy say there is a problem with criminal sentencing, it is time to take notice. When Democrats and Republicans in a divided Congress agree that our nation’s system of federal sentencing laws is in dire need of reform, it is time to remedy chronic problems in criminal sentencing.

Congress enacted federal mandatory minimum sentences beginning in the 1980s in an effort to mitigate what were perceived to be unfairly disparate sentencing practices by different judges for similar crimes. But a rash of mandatory sentencing laws now treats widely different cases the same.

Congress has imposed lengthy mandatory minimum prison sentences for large numbers of federal crimes, which too often results in the imposition of the same harsh sentence regardless of whether the defendant played a major or minor role in the crime or whether the crime had no impact or affected thousands of individuals. Minor crimes that had traditionally been handled at the local or state level have increasingly been “federalized” into a sweepingly broad federal system grounded on uniformly severe sentencing.

Low-level offenders who pose little threat to their communities face years in federal prisons. For example, John Horner, a first-time drug offender in central Florida, was sentenced in October 2012 to a 25-year mandatory minimum prison term for selling pain pills that he was prescribed for an injury to an undercover informant who said that he suffered from crippling pain.

For an increasingly large number of defendants like Horner, judges cannot resort to proven alternatives such as mandatory drug therapy and probation because of these outdated mandatory laws.

The negative impact of these laws has been phenomenal. In 1980, 24,000 people were in federal prisons. Today, that figure has soared closer to 217,000, and our prisons are dangerously overcrowded.

The federal prison system is operating at 40 percent over capacity. The United States now has the highest rate of imprisonment in the world and the largest prison population. A massive prison population poses a massive financial burden. Housing and caring for inmates cost the U.S. more than $6 billion last year. In a time of fiscal austerity, the nation cannot afford to routinely imprison large numbers of low-level offenders when more cost-effective alternatives would better serve public safety.

Reforms would reduce the flow of new inmates, save resources and enhance the safety of our communities. Congress already took steps to reverse historic inequalities in drug sentencing when, in 2010, a bipartisan Congress eliminated the disparity that caused crack users to face prisons sentences 100 times higher than powder cocaine users. Still, there is much more to be done.

Attorney General Holder recently unveiled the Department of Justice’s “Smart on Crime” initiative that includes steps to limit federal mandatory minimum sentences in nonviolent, low-level drug cases.

Not all crimes are equal, and an undeniable body of evidence indicates that not all races are treated equally by our criminal justice system. As Republican Sen. Rand Paul of Kentucky noted at a congressional hearing this fall, one-third of African-American males are prohibited from voting because of felony convictions. Minority groups disproportionately face charges that result in mandatory sentencing. Repealing or lowering mandatory minimum sentences would give judges the flexibility to weigh each crime individually and to separate the drug lords from neighborhood offenders.

Two bipartisan bills currently being considered by Congress present a promising opportunity to address the explosion in prisoners convicted of drug-related crimes. One is the Justice Safety Valve Act, introduced by Sen. Paul and Democratic Sen. Patrick Leahy of Vermont. The other is the Smarter Sentencing Act, sponsored by Democratic Sen. Dick Durbin of Illinois and Republican Sen. Mike Lee of Utah.

The Justice Safety Valve Act would allow judges to sentence below mandatory minimum sentences for virtually all federal crimes, while the Smarter Sentencing Act would provide this authority more narrowly limited to nonviolent drug offenses. The latter bill would also reduce mandatory minimums for certain drug offenses and allow current inmates to apply for relief from their original sentencing under the irrational disparities that once existed for crack and powder cocaine sentencing.

Justice Kennedy warned in 2004 that, “Our resources are misspent, our punishments too severe, our sentences too long.” In August, Attorney General Holder echoed that sentiment when he told the ABA House of Delegates that, “Too many Americans go to too many prisons for too long for no good law enforcement reason.” Violent offenders who threaten our communities deserve to lose their liberty, but we err in treating nonviolent offenders with the same antipathy. Over-reliance on federal mandatory minimum sentences is largely responsible for our overpopulated prisons and our crippling prison outlays. We need to get smart on crime and reform our criminal justice system.

By James R. Silkenat

James R. Silkenat is president of the American Bar Association (www.americanbar.org). ― Ed.

(McClatchy-Tribune News Service)

(MCT Information Services)