Photo: Michael Romanos
This article was originally published in the July 1, 1994 issue of the Boston Phoenix.
A little-known provision in the crime bill now being negotiated by a House-Senate conference committee would greatly expand the number of prison cells available to house violent criminals, and it wouldn't be cost a dime. But it may be doomed unless Senator Ted Kennedy is willing to spend some political capital.
The provision is called the "safety valve" to reform that would allow federal judges to bypass mandatory sentencing when dealing with first-time non-violent drug offenders. And in a rare display of political smarts and courage, both houses of Congress would make the safety valve retroactive. According to the US Sentencing Commission, this means between 1600 and 5000 current federal inmates could qualify for release- thus freeing up those cells for criminals who are truly dangerous.
But the retroactive clause is in jeopardy. The Clinton administration, wary of being cast as pro-criminal, is working against it. Attorney General Janet Reno, once a staunch advocate of releasing first-time non-violent offenders, has quietly switched. And Senator Joseph Biden (D- Delaware), chairman of the Senate Judiciary Committee, is doing the White House's bidding.
"The Department of Justice has a problem with it," says a congressional source. "They're afraid of a Willie Horton ad that says, 'You let somebody out of prison.'"
Kennedy, who helped insert the safety valve in the crime bill, is the senior Democrat among the 19 senators and representatives who make up the conference committee. Unless he is willing to stand up to Bill Clinton and Joe Biden, the retroactive provision is not likely to survive. Thus far Kennedy has given little indication of how hard he'll fight for it, and it surely doesn't help that he has a touch re-election battle on his hands.
But there is a light at the end of the cell block. The emerging consensus on targeting prisons for violent offenders includes a growing number of conservatives and Republicans, including both of Kennedy's GOP opponents.
"Of course, it's counterproductive to jail these people on mandatories," Kennedy said in an interview with the Phoenix adding judges should be allowed to exercise their discretion as long as they follow federal guidelines.
The US Sentencing Commission establishes guidelines on sentencing for certain crimes. If a judge wishes to disregard the guidelines, she or he must put those reasons in writing. "I am strongly in favor of the sentencing guidelines," Kennedy says, "and I'm strongly opposed to mandatory minimums. We have undermined, in a very important way, the integrity of the guidelines by putting the wrong people in."
The safety valve is part of the massive crime bill being negotiated by the conferees. The Senate approved a $22 billion crime bill last November in a 96-to-four spasm of bipartisanship.
The Senate bill offered up plenty of macho for conservatives: 53 new death-penalty provisions (among them: capital punishment for murdering a federal poultry inspector); a three-strikes-and-you're-out law to lock up three-time felons for life without parole; funding for 100,000 new police officers; and $8 billion for more prison cells. Liberals got much of what they wanted, too: gun-control initiatives, expanded drug treatment, and a gaggle of prevention programs aimed at young people.