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How to Defeat the Smarter Sentencing Act

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As I noted, the Heroin Pushers Windfall Act Smarter Sentencing Act, or SSA, was passed out of the Senate Judiciary Committee with the support of several Republicans.  It may well pass the Senate, if Harry Reid decides to put it up for a vote  --  a pretty big "if," in my view.

Assuming the SSA passes the Senate, it will have to be stopped in the House, where Republicans are in control.  Still, since some Republicans voted for it in the Senate, in part out of a distrust of government that is probably even more pronounced in the Republican caucus in the House, the question is:  What is  the right strategy for defeating the SSA in the House, thus sending it to its deserved fate?

I have a few suggestions.
As I pointed out, one reason the bill attracted Republican support is that it gave the Tea Party and/or libertarian-oriented Republicans something they want. Specifically, it orders the Attorney General to publish a complete list of federal offenses, together with the mens rea requirement (if any) for each.

This was a key victory for Republicans in the overcriminalization and overfederalization movements.  The overcriminalization movement in particular is disturbed by the proliferation of non-mens rea statutes  --  the kind of statutes that can send you to jail even if you had no reason to think you did anything wrong, much less criminal.  People in the overcriminalization movement believe that the regulatory state has simply run wild, and that its thug-like muscle is the little publicized but very potent threat of criminal enforcement.  Republicans sharing this outlook are not made any easier by what they view, correctly, as the increasingly politicized priorities at the Department of Justice.

I have reservations about the overcriminalization movement as the perhaps unwitting cat's paw of a broader attack on criminal law.  Not for nothing are our cunning friends at the NACDL whipping up the flames.  Still, I share the apprehension about the disappearance of mens rea from criminal statutes.  That disappearance, it seems to me, undermines the basic legitimacy of criminal sanctions as punishing only acts a normal conscience would consider wrong.  I explained these views in my piece, "Intent-Optional Criminal Statutes:  A Plea for Reform, and a Note of Caution for Reformers," published in the most recent edition of the Harvard Journal of Law & Public Policy.

So what does all this tell us about how to derail the SSA in the House?

One way might be to give House Republicans what's good about the Senate version of the legislation, and then some, while deleting what's bad, to wit, the SSA's swooning love letter to drug pushers  --  people who know full well that what they're doing is not merely wrong but extremely harmful and sometimes lethal.

Thus, without getting into great detail, and with the modesty that befits a preliminary proposal, let me suggest this as an alternative version to the present SSA.

--  Retain the requirement of a listing of non-mens rea statutes.  

--  Require the AG to explain, as to each, how criminal penalties can be squared with traditional notions of blame and culpability.  Such explanations would have to include a discussion of why regulatory violations could not more effectively and fairly be processed as civil matters.

--  Eliminate incarceration as a potential punishment for any non-mens rea crime.

--  Require that enforcement be undertaken only by the three agencies with the most experience and professionalism:  The FBI, DEA and ATF.  Many of the most troubling stories about regulatory enforcement have been about SWAT-team type raids by Game and Wildlife officials or EPA personnel, or other officials from various agencies in essence impersonating cops.  This has been a major concern of those concerned with overcriminalization.  

As respects the SSA's treatment of mandatory minimums for drug offenses, the present proposed changes  --  which amount to meat axe slashing  --  should be eliminated or substantially pared back. 

Ideally, the existing structure of drug penalties would remain where it is.  If that turns out not to be possible, then at the least the proposed reductions in the minimums should be significantly moderated.  Thus, the 20 year MM would be pared back to 16 (not 10, as the SSA as presently written would do); the 10 year MM would go back to 7 (not 5); and the 5 year MM would go back to 3 (not 2).  

Perhaps an even better idea would be to compel Congress to vote on mandatory minimum sentences drug-by-drug.  The anti-mandatory minimum movement has been trading on the wildly mistaken impression  --  which it has fanned relentlessly  -- that ordinary people can face substantial, mandatory terms for just smoking pot, and that thousands of people are in federal prison for a few puffs on a bong.

That is simply false.  Mandatory minimums apply to drugs vastly more dangerous, and vastly less accepted by the public, than marijuana.  I doubt there is more than a smidgen of support for reducing sentences for the great majority of drugs prohibited by federal law  --  drugs like methamphetamine, heroin, PCP, Ecstasy and the like.  A drug-by-drug vote on mandatory minimums might possibly result in lowered sentences for marijuana trafficking, but I am aware of no public or Congressional support whatever for suddenly going easier  --  and still less much easier  --  on, say, heroin dealers.  

Once marijuana sentences are separated out from the SSA, and other, harder drugs are made to stand alone, one-by-one, in the spotlight and voted on one at a time, I think it overwhelmingly likely that the movement to slash mandatory minimums across the board will collapse like a house of cards.


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