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The Biggest Obstacles Right Now to Sentencing "Reform"

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From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up.  I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

I think there are several reasons for this. 
1.  The national spike in murder and heroin overdose deaths.  That these things are happening, and with alarming frequency, is no longer disputed.  And both are happening as much as anywhere in our nation's capital, indeed within blocks of where Congress sits. With this as the state of play, it is going to be considerably harder to sell Congress on legislation that goes easier on crime and criminals.


2.  The massively ill-timed acknowledgement by some of the leaders and architects of the "reform" movement that they view the legislation now under consideration as but a tepid first step down the road to shorter sentences and earlier release for thousands of violent criminals.


I view this as at least three things:  Honesty (for saying it out loud); hubris (for a premature victory lap); and a devastating strategic blunder.  Reformers up to now had been doing a good job of portraying the need for lower sentences as a function of the cruel and senseless treatment handed out to some misguided teenager smoking a joint.  Now that they tell us, in effect  --  "Hey, forget the joint smoker, dummie.  This is about the people who mostly make up our prison population, to wit, violent criminals.  Were you really stupid enough to think we could make a real impact on the prison population without releasing those?"  --  they have shown us what this dispute is really about.


3.  The blowback from the war on the police.  For the first part of the year, it seemed that I was seeing a bodycam tape every other day of a cop over-reacting, or much worse, in a citizen encounter.  For the last few weeks, it seems to me that I'm seeing the story of a cop gunned down in cold blood, at the same time that there are marches for "Pigs in a blanket, fry 'em like bacon."


Sentencing "reform" is part of a broader context in which the question, although almost never put this way, is this: Are we going to lose our nerve?  Are we going to go back, not just to the spiraling crime, but to the ways of thinking about crime, that created the spiral in the Sixties and Seventies? Are we going to go back to thinking that normal, law-abiding citizens are the problem (because of their supposed callousness and indifference), or will we continue to understand that criminals are the problem?


This question tends to get crystallized in our attitudes toward the police.  When we see them abusing citizens, that tends to make us doubt authority (which of course the police represent).  When we see them getting shot down by thugs, that tends to make us remember the reasons authority is needed and has to be backed up.

And no, I am not saying that the war on the police and the push for sentencing reform are the same thing.  I am saying that the social attitudes towards one will tend to influence the direction and strength of the social attitudes toward the other.  Just now, and rightly in my view, we are getting reminded of why we need the moral confidence in which our present federal sentencing system takes root.


4.  The realization on behalf of our senators and congressman that there is little to no public support for going easier on felons, most especially those dealing in hard drugs, like heroin, and the violence so frequently associated with drug dealing.

I, for one, am glad the August recess gave our legislators time to go back home and take the temperature of their constituents about whether going easier on convicted traffickers is really what they want.


5.  The growing realization by some pro-business and libertarian-leaning Republicans that their throwing in with the liberal Democrats and the Al Sharpton view of criminal justice is mistaken, not just as a matter of policy, but as a matter of strategy. 
 

The Republican backers of sentencing "reform" had been hoping to get, as part of the package, strong action to scale back overcriminaliztion and overfederalization (an aim I largely support).  The problem is that the liberals want more of the regulatory state, not less, and want more rigid enforcement  --  including enforcement with criminal sanctions  --  not less.  I sense that the pro-business and libertarian-leaning Republicans are starting to understand this unfortunate reality.  As they do, the needed support, and the needed votes, for sentencing "reform" will start to peel away.  

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