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Blowing Smoke on Sentencing Reform

The pro-defendant Marshall Project has published a piece setting forth four reasons that mass sentencing reduction for drug traffickers  --  more often palmed off as sentencing "reform"  --  might do better in this Congress than the last one.

What the piece actually establishes is that a certain weed is more popular at the Marshall Project than I had thought.
Let's take the reasons one at a time.

First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.

This is utter nonsense.  Sentencing reform also got nowhere in 2013 (then known as the Smarter Sentencing Act) and in 2015.  It was no closer to passage in those years than it was in 2014 and 2016.  If anything, it made less progress toward passage in the odd numbered years than in the even numbered ones,  But the efforts flopped anyway.

And let's pause to take note of author Bill Keller's vile passage about "those Willie Horton-style gotchas."  What he's snickering about with that language is the butcher-style murders of two little African American girls and their mother by Wendell Callahan, a crack dealer who got early release from federal prison.  The murder scene  --  Mr. Keller's lightly passed-over "gotcha"  --  was so gruesome that the police had to be offered counseling.  Mr. Keller is either too amused by this example, or too afraid of it, even to mention its name. Either tells us a good deal about the value of his thesis. 

Second, President Obama will be gone. Some of the resistance to this year's sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was -- through no fault of his own -- the kiss of death in a hostile Congress.

This is condescension on its usual Manhattan steroids.  It never occurs to Keller and people like him that opposition to mass sentencing reduction is rooted in the idea  -- overwhelmingly supported by recidivism statistics  -- that early release and lower sentences will produce more crime faster.  No, it's only that his opponents are unthinking cretins  --  trailer park trash as they are known in Democratic circles  -- acting only from spiteful political (or racist) motives.

Then the Kellers of the world wonder why their Holier-than-Thou arrogance helped produce Trump's victory.  

Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes -- enough to override a veto.

Someone ought to tell Mr. Keller that 65 and 66 out of 100 don't quite get to the required two-thirds.  But I digress.

It's odd that Sen. Sessions' elevation to the much more powerful post of Attorney General would be seen as a hindrance to opponents of sentencing "reform."  If a point be made of it, though (a) it was Sen. McConnell's decision, not Jeff Sessions', that the bill would not get to the floor.  And Sen. McConnell is right where he was before the election, with almost identical strength in his caucus; (b) the essential and brilliant young Senator from Arkansas, Tom Cotton, became as vocal in opposition as Jeff Sessions, and so remains.  This is not to mention Senators Perdue, Hatch, Rubio and Cruz (who for unknown reasons is sometimes, and falsely, claimed as a friend of "reform"), all of whom remain powers in the Republican Party, and all of whom likewise remain opposed to "reform" as currently envisioned by the Democrats and, e.g., George Soros and Al Sharpton; (c) Republican Sen. Mark Kirk of Illinois, one of the handful of Republicans to back "reform," was defeated, and will no longer have McConnell's ear.

Mr. Keller knows all this, and sweeps all of it under his rug.

And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a "corrections" system that largely fails to correct.

Bill Keller, a leftist Democrat, knows from zip about what the Republican leadership will be looking for, but I'll be happy to give him a clue.  It will be looking to repeal Obamacare, unravel the disastrous Iran deal, get the pipeline built (speaking of something with bi-partisan support), reduce personal and business taxes, scale back antic regulation, support rather than subvert local police, and put an originalist on the Supreme Court over obstructionists like  -- well, like Bill Keller.  That's for starters.

But again, if a point be made of it, mass sentencing reduction for felony-level drug pushers is not something that would "reassure voters."  Voters want no such thing. They want the opposite, as can be seen in the Opinion Research Poll I have linked before.  http://www.crimeandconsequences.com/crimblog/2015/11/do-americans-want-more-jail-or.html 

If that weren't enough, however, these are the voters who just elected Donald Trump.  

Wake up, Mr. Keller.  The notion that there is a voter or Senate consensus to put drug pushers back on the street earlier is beyond absurd.


Bill, I consider Senator Ted Cruz as a supporter of sentencing reform because in Feb 2015 he provided vocal support for the Smarter Sentencing Act: see this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense": https://www.cruz.senate.gov/?p=press_release&id=2184

Am I wrong to view this press release as a sign that Senator Cruz is a supporter of certain kinds of federal sentencing reform?

By November, Sen. Cruz had changed his mind, as Kent reported in this entry: http://www.crimeandconsequences.com/crimblog/2015/11/political-cross-currents-in-th.html

The first paragraph of the article Kent quotes reads:

Before Senator Ted Cruz (R-TX) electrified conservatives with his denunciation of liberal media bias at the GOP presidential debate last week, he took a little-noticed position on a major crime bill before the Senate that set him apart from the politically powerful Koch brothers. Taking the side of law-and-order conservatives on an issue that could emerge as a major focus of the 2016 presidential campaign, Cruz came out against the Sentencing Reform and Corrections Act (S. 2123) on the grounds that the legislation, which will retroactively reduce the sentences of thousands of federal prison inmates, could lead to the release of violent criminals, some convicted of using weapons while engaged in other crimes. He said the Senate bill would release "illegal aliens with criminal convictions" when a "major crime wave" is already sweeping the nation.


Ted's coming over was a key moment in the demise of the SRCA. Another moment, two months later, was the Wendell Callahan triple murder scandal. And the third strike, as it were, came roughly nine or ten months ago, when the liberal media could no longer cover up that a major spike in both violent crime and drug deaths was underway in the United States, and had been for more than a year.

The SRCA never really had traction to start with, because it never got a majority in the Republican caucus. But with those three strikes against it, it would not be all that long before its backers had to admit that it had gone from life support to the funeral home.

Still, I will say this: You are not wrong to see Ted Cruz (and me, for that matter) as potentially supporters of "certain kinds of sentencing reform." I don't speak for Ted, of course, but we think largely alike.

The kinds of reform I'd like to see are, inter alia, (1) a return to mandatory guidelines along the lines of the Stevens dissent in the remedial portion of Booker; (2) no retroactivity to anything unless expressly mandated by the Commission and/or Congress; (3) mens rea reform, in which no defendant could face criminal sanctions for something a normal person of prudence and good faith would not know is wrong; and (4) incentivizing grants to states to encourage (not bludgeon) them to improve conditions in prison. Some state prison conditions are so poor that, in my view, they decrease the already lousy chances of rehab. Improving them will help the prisoner, and will help us.

So, to be clear, both Bill Otis AND Ted Cruz are friends of smart and needed federal sentencing reforms. In Cruz, we have vocal support for the reduction of mandatory minimums for drug sentences, and in Otis we have federal incentives to improve prison conditions. I sincerely hope AG Session also has an affinity for these sorts of reforms.

I think I'll let Ted Cruz speak for himself. My understanding of his present view is that he opposes the SRCA because it creates risks of violence. When we see assurances that the SRCA, or whatever "reform" succeeds the corpse of the SRCA, will produce no more Wendell Callahans and dead little girls, that will be another matter. But I have seen no such assurance.

And yes, I want to incentivize better prison conditions -- not a new stance for me. They are criminals, yes; early release creates avoidable dangers to innocent people, yes; but they are still human beings who deserve a shot at a better life, for themselves and for us, when they're released from their justifiably stern mandatory minimums.

Bill, I have long known you have long advocated for various (measured) reforms of the current federal sentencing system, and the same is true for many key GOP leaders like Senators Grassley and Hatch and Cornyn and Cruz and Ryan and so many others. Indeed, even soon-to-be AG Sessions was a vocal advocate for crack sentencing reform back in the day.

This is why Bill Keller is not nuts to think 2017 could be a year in which some (modest) federal sentencing reforms make it through Congress. And, I suspect that, were you not so eager to bash Keller, you would agree that (a) the aftermath of a big election (rather than the run-up), and (b) the departure of a Prez that GOP leaders were always keen to oppose help to make the odds of congressional passage of some federal reforms somewhat more likely. (Of course, it could not be less likely given that nothing of consequence got passed through Congress after the FSA's passged in August 2010).

Doug --

This is what you're missing:

The GOP did not decline to pass "reform" for political reasons. They declined because a majority of the caucus thinks it's a bad idea for the country.

Their reasons for thinking that are just as strong now as they have been in the past. (Indeed, they're stronger if they read the Washington Post's startling "Second Chance City" series, which puts the lie to the basic ideas behind sentencing reform like few items of investigative journalism I have ever seen).

It's true that I don't much care for Keller's dismissive, that's-the-way-the-cookie-crumbles snickering at the butcher-murders of two African American girls. But bad as it is, that's not his main problem.

Keller is just doing the same phony rah-rah bootstrapping that sentencing reformers have been doing for years. They want to make it seem that massively lowered sentences is an obviously good idea that every intelligent person long ago accepted -- so as soon as we just push past these unworthy, petty, political obstacles created by unworthy, petty, political people, it will become law.

This is so much condescending baloney. Mass sentencing reduction is NOT a good idea, and still less is it an obviously good idea, contrary to Keller's (and his buddies') self-satisfied, we-elites-know-better assumptions. Indeed, it's a BAD idea, for the reasons I have outlined in roughly 300 posts, articles, op-ed's, debates, forums, etc.

It never had a majority of Republicans and it doesn't now. Indeed, as the ORC poll shows (and, inferentially, Trump's victory also shows), it doesn't have a majority of the public either, or anything close.

The reason I keep offering bets on this is not to be gauche, but to puncture all the Keller-style rah-rah with the hard reality of putting some dough on the line.

And, now that I think of it, the bet is still open!

Bill, I agree that the GOP has never fully embraced the versions of reform sought by Dems --- though that is truly for every major policy issue and I do think part of the reason is because the reform is sought by Dems.

Notably, as GOP leaders have taken control in more states, sentencing reform in the states has become much more common. I have seen this here in Ohio and it has also be true in places like Texas and Georgia. And reforms even won by plebesite in California and OKLAHOMA in 2016.

Bill, I re-read the Keller piece, and I now want to take issue with both the tone and substance of your criticisms. Specifically:

1. What is the basis for your assertion that Keller or anyone else is "snickering about ... the butcher-style murders of two little African American girls and their mother by Wendell Callahan"? (Do you think it would be fair for me to accuse the NRA of "snickering" about the gun crimes of Dylann Roof or the increase in gun murders in Chicago?)

2. Senator Cotton expressly stated in his big speech opposing the SRCA that the GOP should not give Prez Obama a legacy achievement. In light of that reality, why is is wrong for Keller to state that "some" resistance to the SRCA was based in "a reluctance to give the president a parting victory"?

3. In the comments here, you double-down on the notion that Keller engages in a "dismissive, that's-the-way-the-cookie-crumbles snickering at the butcher-murders of two African American girls." Again, I ask where that snickering is evidenced in this piece, and I wonder if you think everyone who has expressed support for federal sentencing reform is guilty of such snickering just for supporting sentencing reform.

4. I understand that YOU think that drug sentencing reform is a bad idea, but there is considerable evidence from the last few elections that large percentages of American's take a different view. Indeed, the national election candidates who called for reforming the CJ system GOT 10 MILLION MORE VOTES than Donald Trump:

Here are latest numbers:

HRC + 3d Partiers, who all called for CJ reform = over 73.5 million votes (about 54% of votes cast)

DJT = about 63 million votes (about 46%)

Isn't that vote count alone pretty strong proof the nation's populace wants CJ reform, particularly drug sentencing reform?

Throw in the fact that marijuana reform won big in 8 states (many red) and sentencing reform won big in CA and OK, and I think I could make a case for a landslide vote for drug sentencing reform, no?

1. Keller's dismissive and chuckling use of the phrase, "There is reason to think those Willie Horton-style gotchas have lost some of their potency..."

"Willie Horton-style gotchas." Sure.

Is it that Keller doesn't know about the Callahan triple murder, or that he doesn't care? Or that, in his view, the victims don't really count anyway? They weren't Very Sophisticated New Yorkers like he is!

It's disgusting any way you look at it.

2. I said that OPPONENTS of the SRCA based their stance on the merits rather than on Obama's "legacy." Citing Sen. Grassley, the only person you mention, hardly contradicts me, since he was a SUPPORTER of the legislation.

3. See (1), supra. And if you want to indulge Keller's condescending, my-opponents-are-petty-hacks tone, feel free. I won't, and I've seen enough of it from smug, supercilious leftists like him.

4. You might be within shouting distance of being right in your election analysis if you could cite any evidence that the length of drug sentences ranked ANYWHERE in, say, the top 25 issues that made a difference to voters as they cast their ballots for President. And no, I don't mean crime generally, or drugs generally, I mean what we are talking about here, that being THE LENGTH OF DRUG SENTENCES.

Where's the evidence on that?

P.S. If you want to join the chorus that "Hillary really won the election," you should feel free on that one, too.

P.P.S. I repeat 100% my main thesis here: The notion that mass federal sentencing reduction -- which tanked in the last two Congresses with Obama in the White House egging it on -- is going to do better now, where McConnell is still Majority Leader and his longtime friend Jeff Sessions has been elevated to AG, is not merely false but absurd. Keller is whistling past the graveyard for the benefit of his numerous "Trump-is-a-Nazi" friends at the NYT.

Of course I might be wrong on all that. Thus my bet offer about the passage of sentencing "reform" is still open. Yes? No?

In turn:

1. Is it the phrase "gotcha" that rankles, Bill, and that you consider "disgusting"? He is referencing political attack ads of the Willie Horton variety, not any crime victims. What phrasing would be more respectful in your view?

2. Bill, I reference Senator Cotton, who himself reference legacies at the end of this Feb speech against the SRCA when he closed starting with this sentence: "In the discussion over the Sentencing Reform & Corrections Act, there is much talk of legacy, and in particular the legacy of President Obama after he leaves office."

3. There are many times and many settings in which you can fairly attack the political left for adopting a "condescending, my-opponents-are-petty-hacks tone." But I really do not see such a tone in this particular piece, and I really think you are attacking what you think Keller is thinking rather than what he is actually saying.

4. My point on the election, Bill, is that you cannot assert Trump's victory was proof of a strong popular vote for "law and order" policies. And the plebiscite victory of sentencing reform in California AND Oklahoma is the only direct evidence of what some voters think on sentencing reform (as well as, I think, the marijuana votes in 8 states).

P.S.: Hillary lost the elector election, which is all that matter for who gets to be Prez. But it remains the case that CJ reform candidates got over 73.5 million votes while the "law and order" candidate got only about 63 million votes. That fact undermines any assertion that the voters in 2016 voted strongly against CJ reform.

P.P.S. Keller's piece is not absurd, though it may be wishful thinking. That said, if Trump and some of the "Right on Crime" members of his team (e.g., Rick Perry) decide they want to do some modest reforms, those reforms have a much better chance now than anything Obama was pushing in front of an inherently opposition GOP.

Restate the terms of your bet, and I might be willing to take you on.

Very quickly: My bet, from a thread on Dec. 1, was this: "...there will be no broad-based federal statutory sentencing reductions enacted in the next two years. $500 on that one."

As I say, it's still open.

P.S. "...if Trump and some of the 'Right on Crime' members of his team (e.g., Rick Perry) decide they want to do some modest reforms, those reforms have a much better chance now than anything Obama was pushing in front of an inherently opposition GOP."

And if I were a foot taller and 40 years younger, I'd be playing in the NBA.

Does mens rea reform count as "broad based" Bill? How about some reform to marijuana prohibition? Or an expansion of who is made eligible under the statutory safety valve? Or another tweak to crack sentences? Or the parole-like features in the Cornyn-driven Corrections part of the SRCA?

I agree that we will not get a "Christmas Tree" bill like the SRCA, and I really think that is just as well. But I do think we might see a number of smaller reforms make it to the desk of Prez Trump in the next two year. In other words, if you take out the term "broad-based" from your description above, I will take the bet.

"Does mens rea reform count as 'broad based' Bill?"

Not for betting purposes, since I will be working for that very thing -- it's one of my goals for 2017. Too bad Sheldon Whitehouse (D-RI) felt like he had to make mens rea reform hostage to something he must have known wasn't going to happen.

"How about some reform to marijuana prohibition?"

Depends on what "some" means.

"Or an expansion of who is made eligible under the statutory safety valve?"

Yes, that would count.

"Or another tweak to crack sentences?"

Gotta be more than a "tweak" to count as even vaguely equivalent to the reach of the SRCA.

"Or the parole-like features in the Cornyn-driven Corrections part of the SRCA?"

Since I have also come out in favor of more attempts at rehab while incarcerated, this is not really what I'm getting at (or what mainly the SRCA was getting at). I'm talking about the widespread reduction or elimination of mandatory minimums AT SENTENCING, which is what the SRCA would have done.

I'll say just a couple more things about your earlier comments.

First, you initially cited Grassley, not Tom Cotton. But if we're now talking about Cotton, that's excellent. You quite correctly put up a long post on SL&P about Cotton's statement in opposition to the SRCA, lauding him and it for thoughtfulness and nuance. This is one difference between you an Keller: Keller at absolutely no point credits his opponents with intelligence or fair-mindedness, and makes them out strictly to be petty political hacks. This is apart from his dismissive treatment of multiple child murder.

Second, Keller, in an irony he completely misses (so do you, it seems), contradicts his main point. His thesis is that the sentencing "reform" the public wants will make it through now that politicians don't have to worry about the election season. But if "reform" were actually something the public wanted, the politicians WOULDN'T HAVE WORRIED ABOUT ENACTING IT TO BEGIN WITH.

In other words, Keller's very charge of political cowardice for not passing reform in an election year is implicitly, but unambiguously, contradicted by his claim that reform is something the the electorate desired all along to "reassure voters" (his exact phrase) that Washington could get something positive accomplished.

Wrapping up:

1. I have always tried to be fair and balanced in my coverage of all these issues.

2. You are sophisticated enough to know, Bill, that what "the public wants" and what politicians think the public wants (or what big $$$ claims the public wants when influencing politicians) are always dynamic issues. Also, as you have stressed, in the federal system, you need to get majority support (and perhaps near consensus) with a caucus to get party leadership even willing to more forward.

3. The success of sentencing reform at the ballot box again in CA and also this time in OK may lead more in Congress to conclude drug sentencing reform IS something that the people want (though I know you will continue pointing everyone to every bit of evidence suggesting otherwise).

4. You seem to miss the point --- as do so may others on the left and right --- that Obama failed to move forward any major statutory sentencing reforms and only got through one minor one (the FSA). Consequently, the next Congress and Prez could hardly do less.

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