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Sentencing Reform Gets Creamed

Many in the "sentencing reform" community thought that, while they lost in this Congress, they would win in the next one.

So much for that.

The Republicans kept their Senate majority, meaning that Mitch McConnell will remain as Majority Leader.  Since, in addition, the law-and-order candidate won the Presidency, it will not be difficult for Sen. McConnell to maintain his wise opposition to mass sentencing reduction.

I'll be eager to see the spin the sentencing "reformers" will put on their wipeout tonight; they are nothing if not creative.  But make no mistake, the results of this election, combined with the horrendous spike in violent crime over the last two years, spell the end of the road for sentencing "reform."


But a notable set of state sentencing reform initiative won with the voters in California and Oklahoma and in 8 of 9 states voting on marijuana reform.

I agree 100% that these election results change dramatically the prospects for federal statutory sentencing reform, but are you expecting key GOP leaders like Grassley and Paul and Lee in the Senate and like Ryan and Goodlatte and Sensenbrenner in the House to still seek some form or reform?

Isn't at least men's rea reform -- which I consider a kind of sentencing reform --- now very likely?

This is not meant as spin but rather as a genuine effort to figure out if the so-called "right on crime" movement is now dead or now has a great "Nixon goes to China" opportunity in the form of a Prez Trump.

A few points.

-- Since Kent and I view pot as having been de facto legal for decades, C&C does not much follow developments in pot law, and takes no position on them. Essentially no one gets prison time for smoking a joint; the pot issue seems to stir excitement mostly among libertarian think tanks.

-- I don't know what Grassley and Lee, et. al, will do. I am grateful to them for making sure that the country had a say in who will sit in Justice Scalia's seat. If they re-introduce sentencing reform, fine; it will meet the same fate it did this year. It was not Grassley and Lee, but Sessions and Giuliani, who were standing at Trump's side last night. That picture was worth a thousand of my words.

-- Free-standing mens rea reform would be an excellent idea, but I suspect the Democrats will filibuster it. They never liked it much to start, and now they're madder than a wet hen. They thought it would be the REPUBLICAN Party that would be in shambles.

-- Right on Crime may make some headway in the states, although I think it's already picked the low-hanging fruit. And I think President-Elect Trump is less likely to have a "Nixon-goes-to-China" moment than a "Nixon-goes-to-Israel" moment.

Doug is correct that the approval of Proposition 57 in California is a big win for sentencing "reform" in the worst possible sense of the word.

Calling the pot measure a "sentencing reform" measure is a head-shaker. Mixing up sentencing with the question of whether an act is criminal at all is an absurdity straight out of Alice in Wonderland.

I would also be in favor of mens rea reform adopting the Model Penal Code default rule, not the rule that was in the recent failed measure.

Kent, doesn't Prop 64 in California include opportunities for persons past-convicted on marijuana offenses to get now resentenced?

Also, doesn't legalization in a state typically make it easier for former offenders to get past convictions sealed/expunged?

I agree that I am stretching in some ways to call marijuana reform (especially in medical states) a form of sentencing reform rather than, perhaps, "drug war" reform or just criminal justice reform. But, practically speaking, just as repeal of alcohol Prohibition reduced both crime and incarceration, I am hopeful that the slow and steady repeal of marijuana prohibition will have the same positive "sentencing" results.

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