Ted's turn

By AL GIORDANO  |  August 26, 2009

"Teddy is the author of the flat-time sentencing. Teddy's the author of drug rehabilitation. Teddy's the author of requiring treatment of addicts in prison. The big ideas for the last 15 years have been Teddy's. But it always amazes me that people think, you know, Teddy's a liberal. If you look at his voting record on criminal-justice stuff, he has done more to bring cops and prisons. Federal judges get angry with me on the creation of the sentencing commission. Well, it was Teddy's idea."

And Biden credits Kennedy with exercising leadership on the safety valve- a provision that has attracted true bipartisan support. Among the unlikely allies who back the idea, according to Biden: Kennedy and Senators Paul Simon (D-Illinois), Alan Simpson (R –Wyoming), Orrin Harch (R-Utah), and Strom Thurmond (R-South Carolina).

Recalls Biden: "They all came to me and said, 'We're going to eliminate existing mandatory minimums and provide this review process.' I said, 'You have the votes for that?' They said, 'Oh, yeah, we do.'"

A Justice Department study last year revealed that 20 percent of federal inmates are first-time non-violent offenders. Biden's committee conducted a similar study of state prisoners nationwide. According to Biden, the results were appalling: of the approximately 863,000 inmates in state prison, about 160,000, or nearly one in five, are first-time non-violent offenders. At the same time, Biden says, some 30,000 violent criminals went free because of federal court orders aimed at easing prison overcrowding in 32 states.

"One of the conclusions I made," Biden says, "and it's not rocket science, is to take those 160,000, or nearly one in five, are first-time non-violent offenders., take them out of the prison system, and put them into a boot camp. And while in the boot camp, the deal would be that they have to undergo drug treatment."

But despite Biden's initial good intentions, he has apparently caved in to the baser concerns of the Clinton administration. Biden held a staff meeting on Sunday, June 19, and announced he was removing the retroactive portion of the safety valve.

Fear of Paperwork

"It's pretty impossible to implement and enforce a retroactive safety valve," insists Justice Department spokesperson Bert Brandenburg. "Somehow you need to safely and reliably go back over thousands of cases, whether there was violence, weapons, force, whether the defendant was cooperative. It would cost enormous amounts of money in resentencing, motions, and litigation."

But Julie Stewart, president of Families Against Mandatory Minimums (FAAM), based in Washington, says the information needed to evaluate each inmate is already available.

"The sentencing commission has records on every federal prisoner," she notes. "The judge laid it out, whether there were weapons, whether it was a first offense. It would be simple using that data. The sentencing commission has already done an analysis and come up with 1600 people who would definitely benefit from the safety valve."

Last year, she notes, the commission adjusted its sentencing guidelines for people convicted of distributing or conspiring to distribute LSD. "Two hundred defendants applied for a reduction," Stewart says. "It was handled very smoothly."

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