Yesterday, sentencing reform (that's the gauzy phrase that means letting criminals out earlier) was six feet under. The reckless, judges-run-wild JSVA was so radical it hadn't even received a vote in SJC; and the SSA, which got a favorable Committee vote (13-5) under the leadership of Chariman Leahy headed straight downhill thereafter. Majority Leader Reid said he would bring it to the floor, but never did.
This was back in the first part of the year.
With last night's results, and Republicans likely to have at least 54 seats in the new Senate, sentencing "reform" and similar measures are extra dead. Majority Leader-designate McConnell has never said a word in favor of dumbed-down sentencing, and Chairman-in-Waiting Chuck Grassley brilliantly led the opposition to the SSA and the JSVA (and successfully sponsored three new mandatory minimums). The old House never acted on either bill, and the new House is less favorably inclined toward them than the old one.
But the basics are not in the leadership. The basics are that the American public rightly has no desire to cash in the success stern sentencing has given us. Crime was not an issue in last night's Congressional elections, but they produced a majority of the majority in each house even more skeptical about the what-me-worry approach to sentencing than had been there before.
Couple of VERY important nuances to this story, Bill:
1. You are talking here ONLY about federal sentencing reform, because state sentencing reform had a big winning night with Prop 47 winning big in California (and marijuana legalization winning in Alaska, DC and Oregon).
2. Sen. Grassley has sponsored his own sentencing reform bill based on the success that Texas has had in this arena, and I have no reason he won't remain interest in moving forward with his own sentencing reform proposals.
3. The main impediments to bipartisan federal sentencing reform over the past couple years has been, it seems, a disinclination to give Prez Obama or AG Holder or the Democratic Senate any big victories on this front. It is possible --- though not likely --- that these concerns will be cleared out now that a whole lots of Ds are looking for new jobs.
4. None of the Rs now with more power expressed any vocal concerns about the new reduced drug guidelines that are now law and are going to be applied retroactively. That is not only a telling indication that Rs are okay with federal reforms that will have a huge practical impact (huger than would the JSVA or the SSA), but it also should embolden the USSC and federal judges to keep pushing downward on federal sentence lengths without fear that a Republican Congress will vocally complain about such efforts.
5. All of the most newsworthy top-of-the-ticker Rs as 2016 looms --- Senators Rand Paul and Ted Cruz, Rep Paul Ryan, Govs and former Govs Jeb Bush, Chris Christie, Mike Huckabee and Rick Perry --- have all been significant and often vocal supporters of sentencing reform. Especially because sentencing reform is not as toxic with the R base as topics like immigration reform and SSM while also appealing to younger and minority voters, I am expecting that these GOP leaders will be eager to have a GOP Senate do at least a little something on this front.
That all said, and based on all these factors, I see sentencing reform nationwide to be looking even better today than it looked yesterday. Please explain what I am missing in my analysis if you think I have this totally wrong.
There are actually three things, not two, that are inevitable: Death, taxes, and that the side that lost the election will try to make it look like a win anyway.
1. The idea that Grassley's replacing Leahy is anything other than a disaster for federal sentencing "reform" is, ummm, a bit out there. I suspect Grassley signed on to the Cornyn bill as a matter of comity to an old friend -- something that is common in the Senate, and almost certainly knowing that it was going nowhere. The two things the Left actually wanted and campaigned for, the SSA and the JSVA, are dead. Do you disagree?
BTW, since the Dems are already on record going along with Grassley's three new MM's, can you think of a reason he shouldn't introduce them again, and expect their passage?
As I've said here many times, pot is already de facto legal, so it just doesn't ring my bell that much that a state here and a state there ratify the status quo. But even at that, I don't believe any state has legalized public puffing up, which is what the druggies really want: It's the flouting in your face as much as the high that drives them.
2. You note, "The main impediments to bipartisan federal sentencing reform over the past couple years has been, it seems, a disinclination to give Prez Obama or AG Holder or the Democratic Senate any big victories on this front."
Nope. The main impediment is that Republicans think, correctly, that the present system has worked well for law-abiding people, a view that is overwhelmingly supported by the massive crime reduction of the past 20 years.
Plus, your assertion is just counter-factual. The Democratic Senate DIDN'T NEED any Republican help for its first two years. The reason they didn't push for lighter sentencing then is that they knew, and know even better today, that such a position will be even more of an anchor than the ones they find around their necks this morning. Stiff sentencing for every drug but pot is supported by the American people.
I understand that the bubble of academia doesn't get this. But it's true, as the legislative history of the SSA and the JSVA even before last night shows.
3. With the Senate then in Dem hands, there was no use in trying to push back on the USSC's giveaway's. What I don't think you're getting is that the Reps think, correctly, that the place to win is on other issues such as the anemic economic recovery, the unpopularity of Obamacare, fears of that Obama has no good plan for dealing with ISIS or other threats -- that stuff.
You can never push more than two or three issues at most. With crime at a low level, in part due to high levels of incarceration, the electorate cares more about other things. That, however, is very different from saying that it wants lower sentences for hard drug dealers.
4. In light of last night's results, it's obvious that it's not the Republicans who have to reach out to opposition constituencies. The opposite is true: What plan do the Dems have to reach out to whites, males, religious people, independents, married women, veterans, and middle-class to upper middle-class voters?
The Dems didn't win last night. They lost. And I will bet you $500 here and now that the Republican 2016 candidate will NOT have, as part of his platform, lowering sentences for hard drug dealers.
Are we on?
P.S. Eric Holder is the LEAST popular cabinet member with both the Republicans and the general public. Why would the Reps want to mimic his policies?
UPDATE to my last response: I listened to the President and Leader McConnell in their statements this afternoon, and neither one said beans about lowering sentences.
If it's so popular, why didn't they?
The same is true for every post-election speech I heard last night and early this morning.
The legal academy is just living in its own world. Most of it wants lower sentences, just as most of it wants an end to the death penalty. But these simply are not majority positions with the electorate, and still less in the Republican Party.
Sure, there are a few Republicans who support "sentencing reform." But a few is not a majority. Let me illustrate this with two questions.
First, if a majority of Republicans wanted sentencing reform, why didn't the SSA even get a vote in any committee of the House of Representatives?
Second, if the prospects for the SSA or any similarly sweeping bill are better today than 24 hours ago, could you name a single victorious Republican who campaigned on it? Ernst? Tillis? Daines? Garnder? Sullivan? Anyone?
Not unreasonable points you raise, Bill, but you are still quick to (1) elide the reality that significant state sentencing reform(s) got a boost from voters, and (2) discount the big-picture, long-run story that that leading national players likely helping to shape the GOP's focus over the next few election cycles are all on record in support of some type of sentencing reform.
I see the votes in California, Alaska, Oregon and even Florida as evidence that targeted sentencing and drug-war reforms can and will garner majority support (at least in some states), especially among younger and minority voters that the GOP remains eager to reach in order to have a better shot to take back the White House. That is why, I think, most GOP leaders with serious national aspirations are talking about reform on these issue and why I think there is a chance --- though maybe not a big one --- that those folks with national aspirations will urge the rank-and-file to consider at least the kinds of modest reforms advocated by Sen. Cronyn or Rep. Ryan. We have seen some GOP rank-and-file move this way on federal marijuana issues, and I hope we may see more in the months ahead on this front and perhaps others.
Since you know the inside-the-Beltway game much better than I ever will, I trust your instincts that the likes of Grassley, McConnell and Boehner (not to mention Ds like Reid and Pelosi and even Obama) will continue to put off the likes of Paul and Lee and Cruz and Ryan and Chafetz and others among the GOP eager to do something in this arena. But, unlike you, I will keep rooting for the Right on Crime folks --- who today celebrate having a new Gov in Arkansas --- to continue to win converts and keep pressing for the feds to follow the successful scripts we have seen in states like Texas and Ohio.
Finally, I will bet that the GOP platform in 2016 calls for at least some kind of reform of some aspects of federal marijuana law.
Doug, I think you raise the importance of changes that occur at the state level, changes that while Bill doesn't spend much time acknowledging, he implicitly recognizes the importance of in his comment on marijuana.
In discussing sentencing reform Bill focuses almost solely on the national government and legislation that would alter federal sentencing laws. According to a recent report on the Bureau of Justice Statics website (Ann Carson, "Prisoners in 2013" U.S. Department of Justice, Bureau of Justice Statistics. Revised Sep. 30, 2014) the total prison population in the U.S. in 2013 (Nevada's prison population was imputed) was 1,574,741. The federal prison population was 215,866 and the state prison population 1,358,875. So the federal prison population is only about 13% of the nation's total prison population. Not surprisingly, crime and criminal offenses are much more often prosecuted under state criminal laws, and thus subject to state sentencing laws. With that said, I'm not really sure what the infatuation is with legislation at the federal level, other than a belief that if Congress discusses it, it must mean the issue is salient among the entire electorate. Federal sentencing laws can remain constant or new laws can be put in place increasing sentences, but that affects a much smaller portion of total sentences, which mostly occur at the state level and under state sentencing laws. Both parties at the federal level can sit on their hands when it comes to any issue, but that doesn't mean change doesn't occur at the state level, change which can have a snowball effect among the states.
Here is where Bill's comment: "As I've said here many times, pot is already de facto legal, so it just doesn't ring my bell that much that a state here and a state there ratify the status quo" seems out of place with the focus at the national level on sentencing reform. As far as I know Congress and the president have not dropped everything to work on legislation that would alter the Federal Controlled Substance Act and change the scheduling of marijuana. However, Bill now recognizes that marijuana is "de facto legal." But how did that happen if federal law hasn't changed? It happened because majorities within the states recognized the issue as salient and took it upon themselves to make changes. According to FiveThirtyEight, 156.8 million Americans now live in states where marijuana is decriminalized or allowed for medical purposes. Counting Oregon and Alaska, 17.6 million Americans live in states where marijuana is legal for recreation purposes. The marijuana issue can be framed as a classical liberal issue of "government shouldn't tell me what I can and cannot consume," or it can be framed as an economic issue (likely appealing to more fiscal conservatives) "decriminalizing marijuana will shift the focus of police and prosecutors to other [more serious] crimes, and may also have an impact on prison population and costs." From a rational cost/benefit perspective, even a person opposed to decriminalization of marijuana likely has a break-even point where the costs of criminalization reach a breaking point that trumps the the belief against decriminalization. This same economic perspective can be used for any offense, and I would assume the tolerance level for costs varies depending on the nature of the offense. The bottom line is people are more able to perceive the effects of regulations on their wallet at the state level, and thus it would seem natural that sentencing reform would happen at the state level prior to the national level. This reform will occur in a variety of ways, not just some one-size-fits-all legislative act that restructures all sentencing guidelines.
California, which had an estimated prison population in 2013 of 135,981 (second only after Texas) passed by a 58.4% to 41.6% margin Prop 47. The Center on Juvenile and Criminal Justice expounded on the California Legislative Office's report on Prop 47 and looked at felony data from 2012 to estimate the effect of Prop 47's crime reclassification. The results (which are grounded in the reports methodology) estimate a statewide reduction in prison population of 10,000 - 30,000 with a savings of $400 to $700 million. You can certainly disagree with the downgrading of certain offenses and speculate on the long term effects that this may have, but a majority of voters in California determined that supporting Prop 47 was in the best interest of California.
Other notable changes at the state level include:
- In 2011 Arkansas passed Act 570, allowing nonviolent offenders to be sentenced to work with the Department of Community Corrections rather than be incarcerated. The was reported to reduce prison population in 2012 by 9% and to result in close to $875 million by 2020. (a subsequent increase in harsher sentences for parole violations will likely decrease this estimate)
- In 2012 Georgia passed a law allowing for alternative sentencing for low-level nonviolent offenders. At the end of 2013 the state's prison population dropped by 14%, saving roughly $20 million. The crime rate between 2012 and 2013 dropped 4% (I am not inferring causation between the two)
- In 2011 Kentucky passed the Public Safety and Offender Accountability Act, allowing minor drug offenders to be sentenced to probation and treatment and giving compliance credit to parolees. Prison population reportedly increased by 9% in the following year, however one report claimed a net savings of $29 million from the law. The crime rate increased 3% between 2011 and 2013 (again, not a finding of causation)
The point of this is to show that changes in sentencing laws is likely going to continue to to occur at the state level and not the national level. I believe this to be because the fiscal impact cash-strapped states is more prevalent than the fiscal impact on the federal government; and also the effect on the individual as a citizen of the state is more noticeable than the effect on the individual as a citizen of the country. There is not likely to be a single solution that lies somewhere in one of the major political party platforms, and states will continue to grapple with the issue, attempt solutions, and make changes in an attempt to deal with the inevitable unintended consequences. It is an ongoing process, a difficult one that deals with fundamental issues of safety and security, morality, the role of government, and yet is practically constrained due to the limitations of budgets. While you focus all your attention at the national level and consider the issue as a Democrat vs Republic one, progress will continue to be made at the state level as legislators and citizens attempt practical solutions.
If your response is going to be something along the line of "the side that lost the election will try to make it look like a win anyway" let me assure you that I do not have a side. I am not partisan and did not have a "team" that I wanted to win. I do not view politics as a dichotomous one side versus another. The only real outcome I was hoping for was a 50-50 split in the Senate, and that is because from a research perspective it would have been fascinating to see the change in relationship between the Executive and Legislative branch when the VP is able to cast the tie breaking vote. This change in relationship would alter decision-making from a separation-of-powers game theory model, and it would have been interesting to see how this would effect organizational arrangements and policy outcomes. The 50-50 split did not happen though....maybe next time.
-Sean