In the last post, I noted that 29 former top leaders of the Justice Department have gone on record opposing the Smarter Sentencing Act. Over at the Sentencing Law & Policy, Prof. Doug Berman wonders whether the appearance of their letter today is more likely to mean (1) that the final nail has been driven in the the SSA's coffin, or (2) that the SSA has more life than it might have seemed recently, since it's still supported by my friend Ted Cruz and a few other Senate Republicans, and is but one of a number of items in a momentum-gathering mosaic looking to bring about shorter sentences and less use of incarceration. As Doug puts it:
I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)
I don't know that I have a direct answer, but I might be able to provide some hints.
First, a letter like the one from today's many former DOJ top officials takes a while to put together and gather signatures. The sentiment reflected in the letter is older by weeks or months than the letter itself, but certainly persists today.
Second, leaning toward the side that the letter might be a significant step toward the demise of SSA is the fact that so many of the signatories are presently defense attorneys. In my opinion, it takes guts, and a degree of conviction beyond merely political affiliation or ideology, to come out publicly with a position likely to be unpopular with your client base, and even more unpopular with your colleagues on the defense side.
Third, no matter what happens in the Senate, the letter makes it a good deal less likely that the SSA will pass the House, which is controlled by the Party from which the significant majority of its signatories come. The House has its share of Tea Party members, but none of them has anything like the internal or external clout of Ted Cruz, Mike Lee and (to an extent) Rand Paul. I think the House Republican leadership, both on the Judiciary Committee and throughout the chamber, will take the letter seriously as the mainstream Republican position.
Fourth, as a corollary, the difficulties in the House make the SSA's life in the Senate more problematic. I don't know Harry Reid and have never met him, but I'd wager a goodly bit that he'd rather come back next year as majority, and not as minority, leader. His main mission right now has to be to reduce the already considerable danger to his numerous Red State Democratic colleagues, danger that the Washington Post rates as severe.
If that is how Sen. Reid is thinking, what's the likelihood that he's going to put his most endangered Democratic colleagues to a vote that will correctly be portrayed as possibly saving money in the long run for prison costs, but at the price of slashing by half the minimum sentences that the very worst drug traffickers -- pushers of death-dealing stuff like heroin, meth and PCP -- will get in federal court?
Last, I think Doug Berman puts his finger on a good point, one I have previously noted. With so many other mechanisms already underway, or about to start, to lower federal sentencing -- the Attorney General's August 2013 abrogation of mandatory minimum indictments; the Sentencing Commission's all-comers reduction of drug offense levels; and the aggressive system of unprecedented mass pardons DOJ has made clear it will implement as soon and as robustly as possible -- with all this, the urgency of the campaign for the SSA as it stood even six months ago has all but vanished.