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August 6, 2014

Some sentencing reminders about what stalled in the "do-nothing Congress"

I tend not to get into bashing Congress for failing to do stuff while locked into its current partison gridlock.  This is in part because I see gridlock reflecting important, real and deep policy divisions on certain critical public policy issues, and in part because I always worry federal legislation will (sometimes? often?) risk making certain problems worse rather than better through questionable one-size-fits-all approaches to governing.  (For a useful discussion of this basic perspective, I liked this recent Washington Post commentary by Jared Bernstein headlined "The do-nothing Congress is still better than the actively-do-harm Congress.")

Whatever one's broader views concerning the vices or virtues of a do-nothing Congress, proponents of federal sentencing reform cannot help but be somewhat disappointed that a lot of notable (and arguably badly needed) federal sentencing proposals are now stuck in neutral inside the Beltway.  For starters, as Bill Otis is quick to note in this new post at Crime & Consequences, it seems that all the bipartisan momentum that had built up around the Smarter Sentencing Act (and also some other reentry/back-end sentencing reform bills) has now come to something of a halt. 

For the record, I had always believed and feared that significant statutory reform to any major federal sentencing provisions would be an up-hill climb in a divided Congress, especially after seeing how hard it was to achieve (quite tepid) reform of extreme statutory crack sentencing provisions even when Congress was firmly in Democratic control.  A year ago, in this little post titled "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?", I ruminated that if "Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up."  A year later, I continue to believe that folks particularly eager to see federal statutory sentencing reforms become a reality may now want to root for certain GOP members to become in charge in the Senate.

One other federal sentencing legistaive reform topic on my mind concerns federal child porn restitution awards in the wake of the mess the Supreme Court seemed to make on this front a few months ago through its Paroline decision.  Regular readers likely recall that lots of folks were advocating (some even predicting) that Congress could come up with a quick statutory fix to Paroline.  But, as of this writing, there has been little action on or serious discussion about a Paroline fix bill known as "Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014." And I definitely fear that the need for, and likelihood of, any effective statutory Paroline fix goes down a bit every month as lower federal courts get in the habit of dealing with the doctrine that Paroline left behind.

Some prior related posts:

August 6, 2014 at 02:42 PM | Permalink


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1 in 100 ideas is good

1 in 100 good ideas is viable in the real world.

1 in 100 viable ideas is effecttive and safe.

So the more obstacles in the legislature, the safer we are from bad ideas. Gridlock is good, by allowing only universally accepted ideas. They should have been field tested in small jurisdictions, and unintended consequences should be tolerable.

The legialtures can help reduce incarceration by decriminalizing sharp business practices, victimless crimes, or make them summary offenses, enacting a desuetude law.

Posted by: Supremacy Claus | Aug 7, 2014 4:58:49 PM

Congress does not show gridlock by putting the laws there in the first place. Gridlock is the failure of Congress to serve the american people. Federalism can be a great thing, but things like SORNA, VAWA, AWA,drug laws,gun laws,etc
and the federalization of many crimes negate that.

I could argue more obstacles less great ideas too, however, remember, we are addressing this problem because of the federalization of many crimes,
congress isn't the one putting folks in state prisons.

Congress is too small, those who say this idea is nonsense should support a monarchy or 10 people to rule the entire country. States like wyoming get more representation than bigger states. Those who advocate that smaller states should get a bigger vote are akin to saying that blacks deserve 3/5 of a vote, well okay that's a strech but should a suburban or urban person get 3/5 the voting power of a rural person or vice-versa.

When you vote for governor, the majority vote wins, now the majority from a city or county.

Posted by: Alex | Aug 9, 2014 6:54:28 AM

Alex: Obviously not a lawyer. So your opinion has some validity.

Could I ask your opinion on other governance matter, the Supreme Court. Improve its structure.

1) Move it to Wichita, KS, as the middle of the US both geographically and politically. Get it out of the sick, homosexual, rent seeking Gomorrah of it current location. People will imitate their surroundings no matter how different from their origins. So put an Israeli settler in Teheran, within a few weeks, he is acting and believing like an Iranian.

2) Change the number of Justices to an even number. If there is an even vote, the decision of the lower court stands. It is likely based on prior Supreme Court decision, so reversals and shady 5-4 decision will diminish.

3) Mandatory quotas of non-lawyers on the Court, preferably a majority. Pick smart people, or pick random people from the jury pool of Virginia, next door. It does not matter, the decisions would improve in logic, and the writing would become understandable.

4) Any decision written above sixth grade reading level should be void, not voidable, because it fails to give notice, a requirement of Fifth and Fourteenth Amendments due process. It is also fraudulent, because it is to create a job for a lawyer to translate the gibberish. Judges, who are legal experts, have commented they could not understand the credit card boilerplate. Void any legal utterance above 6h grade in readability.

5) If the fiction of judicial review (actually prohibited by Article I, Section 1) will never be stopped, give the Court the benefit of the Wisdom of the Crowd, by changing the number of Justices to 900, not 9. If they want to legislate from the bench, let them have the features of a legislature, rather than of a junta.

6) The lifetime appointment was to shield the judges from political pressure from losing their jobs. It was enacted 100 years before the description of Alzheimer dementia. One reason for the stupidity and the slowness to improve of the law is that one must wait for the dumbass lawyer hierarchy to die of natural cause. So slow. We are still back in 1275 AD in half our common law practices. Twenty years term shields but does not impede progress.

Posted by: Supremacy Claus | Aug 10, 2014 7:09:19 PM

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