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Why Sentencing Reform Tanked

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The estimable Doug Berman at Sentencing Law and Policy has this entry about what is to him, and others who sought the mass sentencing reductions they call "sentencing reform," bad news.

The news is that their proposals are still on the ocean floor.

The reason for this fact is, however, different from the one put forward in the article Doug cites.
Let me just state the actual reason up front:  "Sentencing reform" tanked because it's a bad idea on the merits, and the majority of the controlling party in Congress recognized this fact.  The principal heroes in shining the light on the real costs of lowered sentences were Jeff Sessions, David Perdue, and Tom Cotton, with important help from Orrin Hatch, Marco Rubio and Ted Cruz.

Let's take a look at some parts of the article.  It's titled, "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened."

This is incorrect at two points.  First, the left and right never came together.  The left and the small libertarian component in Congress came together, but that's about it. Traditional conservatives, including but hardly limited to the six named above, didn't buy it. Second, their opposition formed and won the day in the Republican Party well before Trump was inaugurated  --  or elected, or nominated, or even became a serious candidate.  The proposition that sentencing reform's bleak outlook is a Trump phenomenon is just flat-out false.  

The article continues that, "Despite [supposedly bipartisan] support, however, the measure failed to pass Congress."

Actually, it never even reached the floor in either house of Congress.  The phrase "failed to pass" could easily be taken to mean "was voted down," but it didn't have enough support even to come to a vote.

Then we see this:

Some Republicans wanted the law to include a provision on "mens rea" reform, which would expand the category of crimes in which a defendant's criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted.

That part is true as far as it goes.  For first time in forever, the Democrats wanted to make it easier to convict defendants.  I am unable to recall similar enthusiasm on that side for wanting to make it easier to convict, say, defendants who were killers or rapists.  And, yes, Republicans wanted to re-introduce the notion of bad intent into criminal liability  --  said intent having been a component for about the previous thousand years, or until liberals embraced the notion of enforcing their sprawling regulatory state by sending people to jail.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn't want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election.

That too is flat-out false, not to mention oozing with the condescension and sneering that has come so frequently to mark the ACLU.  It just never occurs to these people that the other side might have a good faith disagreement with them.  Still less does it occur to them that the disagreement is based on the data they constantly claim to value  --  data, specifically, that show increased incarceration and reining in naive or biased judging significantly helped decrease crime for an entire generation.

But, as [John Malcolm, a pro-reform scholar at the Heritage Foundation] sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. 

Bingo!  Inside the Beltway hubris sinks another ship.  Who woulda thought?

1 Comment

Bill, I agree that the article referenced does some interesting and incomplete spinning on the recent history of sentencing reform efforts. But you are also spinning some here.

For example, you cite Ted Cruz as a hero for being against reform. But, in Feb 2015, he called for passage of the Smarter Sentencing Act and called it common sense: https://www.cruz.senate.gov/?p=press_release&id=2184

In addition, in Oct 2015, GOP Senators Chuck Grassley, John Cornyn, Lindsey Graham and Tim Scott all voted in favor of the Sentencing Reform and Corrections Act in the Senate Judiciary Committee. I do not think it fair to describe any of these folks as part of a "small libertarian component in Congress." And I believe both GOP House Speaker Paul Ryan and Judiciary Chair Bob Goodlatte has also express support for sentencing reform in some form. (And lets not forget former GOP reform foe, turned fan, Rep. James Sensenbrenner.)

That all said, I agree it was not the emergence of Trump but rather the emergence of Ferguson/BLM that was the biggest modern turning point in federal sentencing reform discussions. All of criminal justice policy became more polarized and racialized after that, and the pull back of police and related factors also seems to have continued to a reversal of downward crime trends.

Further, I agree 100% that a whole lot of "inside the Beltway hubris" is what prevented the sound development of (perhaps justifiably modest) federal statutory sentencing reforms. Dems in particular, I think, can and should be faulted for resisting mens rea reform as part of the statutory reform effort AND for not getting correction reform achieved before turning to sentencing reform.

I really do not expect anyone --- the press or you or Prez Obama in the pages of the HLR --- to tell this whole story without some spin. But the spin that no "mainstream" GOP members support some sentencing reform is just not accurate.

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