prison bars

Previous estimates said the SSA would save taxpayers $3 billion over 10 years but the new memo more than doubles that at $7.4 billion

The Department of Justice has responded to a Freedom of Information Act request from FDL News for documents estimating the costs that the federal government will not have to incur if the Smarter Sentencing Act of 2014 is passed.

The 12 page draft memo provided to FDL indicates that the DOJ estimates the cost avoidance resulting from the bill’s passage would be $23.9 billion over the next 20 years.

See the Department of Justice memo here

A November 2013 study by the Urban Institute projected that passage of the SSA would save taxpayers $3 billion over ten years, while the DOJ memo more than doubles that figure at $7.4 billion for the same time period. The new DOJ numbers “blow those out of the water” said Jesselyn McCurdy, Senior Legislative Counsel for the ACLU.

“With these numbers in savings I don’t see how anybody can argue that it should not be a priority for Congress to pass the Smarter Sentencing Act” said McCurdy. “It’s a no-brainer.”

The Smarter Sentencing Act of 2014 was introduced in the Senate by Senators Richard Durbin (D-IL) and Mike Lee (R-UT), and in the House by Congressmen Raul Labrador (R-ID) and Bobby Scott (D-VA). It would reduce mandatory minimum sentences for non-violent drug offenders, expand the existing federal “safety valve” that allows judges to impose shorter sentences for non-violent drug offenders if they deem it appropriate, and permits federal inmates imprisoned for crack cocaine crimes prior to 2010 to apply for sentence reduction in line with the Fair Sentencing Act of 2010 (“FSA retroactivity”).

Where the savings come from

The DOJ memo calculates projected cost avoidance from each of the three components of the SSA, in addition to the cost of prison construction and increased staffing if the prison population continues to grow at its current rate.

  • Reduction of Mandatory Minimums: The USSC data identified 7,100 offenders in 2012 subject to the 5 year mandatory minimum and 8,368 offenders subject to the 10-year mandatory minimum. If mandatory minimums are reduced per the guidelines in the SSA, the annual inmate costs go from $1,163,409,072 per year to $865,813,736 per year. Through 2023 this would represent a total cost avoidance of $2,938,719,619.
  • FSA Retroactivity: If the crack cocaine sentencing disparity reforms passed in 2010 were made retroactive to those sentenced before 2010, the DOJ estimates that 3,250 offenders would be released in the first year, earlier than projected, having served 131 months or more. By the year 2020 that figure would reduce to 674 and thereafter 0. The projected total cost avoidance would be $382,392,353.
  • Safety Valve: The DOJ does not provide a breakdown of figures used to calculate projected Safety Valve cost avoidance. On the summary sheet, however, they indicate that they estimate total cost avoidance through 2023 would be $246,985,740.
  • Prison Construction: In 2013, federal prisons had the capacity to hold 132,221 people, but were 36% over that capacity, with a population of 176,484 prisoners. The DOJ estimates that the federal prison population will continue to grow at a rate of 1,600 per year (although the prison population has actually decreased slightly from the memo’s original projections, from 176,484 to 173,227). Without mandatory minimum changes, it would require 16 more prisons at a cost of $5.6 billion to accommodate the increased prison population through 2023 at a rate of 36% crowding.
  • Staff: The baseline inmate to staff ratio assumed in the memo is 4.72 staff to 1 inmate. If mandatory minimums are not changed, the DOJ estimates that in order to maintain that ratio the additional staff costs through 2023 would be $7.1 billion dollars.

The DOJ memo projects cost avoidance due to the passage of the Smarter Sentencing Act to be $1,410,453,592 over 5 years, $7,390,909,543 over 10 years and $23,985,610,553 over 20 years.


Grover Norquist, President of Americans for Tax Reform, has been outspoken in his support of prison reform and has led the way among conservatives. Responding to the new figures provided in the DOJ memo that estimate potential SSA cost avoidance to taxpayers, he said:

Reforming federal mandatory minimums makes sense for many reasons. We now learn that very significant savings to taxpayers is one certain benefit the government has been aware of but only now has this become public.

Molly Gill, Government Affairs Council for the non-profit group Families Against Mandatory Minimums, said:

These numbers show that passing the Smarter Sentencing Act would be a boon for the Justice Department and solve many of its prison overcrowding and budget problems, at least for the next decade. But the numbers also show that even with this reform, we will still have overcrowded prisons and a growing prison population 10 and 20 years from now. We really need to be reevaluating our whole approach to who we put in prison, why, and for how long if we’re going to create policies that future generations can afford.


The Smarter Sentencing Act has broad transpartisan support that includes such unlikely bedfellows as President Obama, the Koch brothers, Attorney General Eric Holder, the ACLU, the Heritage Foundation and and a broad network of faith leaders and community groups.

In January of this year the Senate Judiciary Committee approved an amended version of the SSA by a vote of 13-5 and sent it to the full Senate. In May Senate Majority Leader Harry Reid said that he would bring the bill to the Senate floor for debate. (There is no indication on the documents that the figures reflect the Judiciary Committee’s amendments)

The House has yet to take action on the SSA. Rep. Robert Goodlatte (R-VA), Chairman of the House Judiciary Committee, has not scheduled hearings on the bill so far.

Why it matters

The United States is the world’s largest jailer, with 5% of the world’s population and 25% of its prisoners. With 1 in 99 Americans living behind bars, it is also the highest incarceration rate in US history.

There is also tremendous racial disparity among people of color serving sentences for drug related crimes. According to Human Rights Watch, people of color use and sell drugs at the same rate as whites. While African Americans represent 14% of drug users, however, they comprise 37% of those arrested for drug related crimes. Currently over 2/3 of the people in prison for drug related offenses are people of color.

The Sentencing Project indicates that African Americans are 21% more likely to receive mandatory minimum sentences than whites and are 20% more like to be sentenced to prison than white drug defendants.

The DOJ estimates that if the Smarter Sentencing Act is not passed, there will be 208,484 people in federal prison by the year 2033. If it is passed, the estimate that figure will be 161,657 — a difference of 46,827 inmates.

Does it have any chance of passing?

While members of Congress are notoriously risk averse before elections, the bill is unique for its broad transpartisan support in both the House and the Senate. Republican standard bearers like Ted Cruz and Rand Paul have been outspoken in their support, as have President Obama and the Attorney General Eric Holder. Given the resolve of Congressional leaders to bring the bill up for a vote, there is a good chance that during the lame duck session after the election in November that Congress will take up the bill and pass it in some form.

More information on the Smarter Sentencing Act:

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Photo by Michael Coghlan under Creative Commons License