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Let's Do the Right Kind of Sentencing Reform

September 3, 2015 8:29 PM | Posted by Bill Otis | 0 Comments
It's all true.  I favor sentencing reform.  Just not the kind that's being floated now.  

I favor reform that will fix what's wrong with the system  --  an out-of-control regulatory state, bashing people and businesses for behavior laymen would not even understand to be wrong  --  and preserve what's right  -- incarceration for behavior nearly everyone understands is wrong, including dealing in hard drugs.  Such incarceration has helped bring down the crime rate by half in a single generation.

I've written before about the advantages of restoring mandatory sentencing guidelines, something the majority in Booker all but invited Congress to re-visit.  That is probably the main item most readers would see as "sentencing reform."  I want to focus this post, however, on the part of sentencing reform in which I agree with thoughtful people in such organizations as the Heritage Foundation.
My friend John Malcolm of Heritage recently published an article explaining why reform of this kind is needed, and did a better job of it than I did in my shorter essay in the Harvard Journal of Law and Public Policy.

Without going into detail for now, let me suggest four reforms Congress should adopt to pare back the overreach of federal criminal law.

--  Require the Attorney General to publish a list of all non-mens rea criminal statutes.  

--  Require the her 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 crimes.

--  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 focusing on overcriminalization, and rightly so.  

One other thought:  Advocates who expect any serious reform of non-mens rea statutes from the current version of sentencing "reform" are going to be disappointed if not outright bilked.  I have been in this debate a long time, and I can say with unfortunate assurance that those most eager for drug legalization-lite (in the form of dumbed down sentences for heroin, et al.)  --  not to mention shorter sentences for violent criminals  -- have little if any interest in getting control of the jailer's fist behind the regulatory state. They are, for the most part, two very different mindsets.
      

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