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January 17, 2014

"Political odd couples push sentencing reform" ... and have little to show so far

The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:

At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system.  Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....

The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.

So who are these unlikely co-sponsors?  Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders.  A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.).  Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.

"I think money is driving this debate to some extent but also honesty," Durbin said in an interview.  "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."  

Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year.  Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.

“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”

The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future.  "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said.  "We will soon be marking up legislation to address this important issue."  Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....

It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.

I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform.  It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress.  Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.

That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms.  Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.

January 17, 2014 at 09:20 AM | Permalink


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I've heard this argument that "conservatives" should oppose mass incarceration because it is a big government program--and an obviously highly intrusive one at that.

But that argument would seem to only apply to libertarian-type conservatives, like, as here, Rand Paul. For a more traditional conservative (i.e., one who might buys into Thomas Sowell's "Tragic" vision from A Conflict of Visions), it would seem to make perfect sense to oppose most government programs (because they are more "utopian,") but ardently support those that involve heavy, intrusive programs for the punishment of law violators.

Posted by: GP | Jan 17, 2014 10:36:16 AM

A sentencing scheme which is more "eye for an eye" is long overdue.
- Kill: Then you are killed.
- Steal: Cut off your right hand.
- Rape: Cut off your lower article of faith.
- Lie: Cut off the tongue.
- Talk in church: Nun hits you with a ruler.

Posted by: Liberty1st | Jan 18, 2014 1:58:33 PM

Liberty1st --

You forgot one:

- Write silly posts: Have to listen to Joe Biden speeches.

Posted by: Bill Otis | Jan 18, 2014 2:21:21 PM

Law student, former federal prisoner, and executive director of Prisology, a non-profit that works on criminal justice issues.

You are correct that the U.S. Sentencing Commission will take action, although I don't necessarily agree that it is because of it perceives Congressional inaction. Rather, in the summer of 2013 the Commission solicited input from the public about what its priorities should be for this amendment cycle, and received 14,000 letters regarding same. Most of those letters were the direct result of a letter campaign sponsored by Prisology. If we scream loud enough--and often--our voices just might be heard.

Posted by: Brandon Sample | Jan 18, 2014 10:47:59 PM

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