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May 12, 2016

An effective accounting of why "Sentencing Reform is Seriously Stuck"

The quoted portion of the title of this post is from the headline of this effective new Roll Call commentary authored by David Hawkings, and it carries this astute subheadline "Presidential politics, poison pills and attack ads threaten hopes for bipartisan accord." Here are excerpts:

For more than 18 months, a rewrite of laws governing federal criminal punishments has been touted as the exception that was going to prove the rule: An effort that had so galvanized both conservatives and liberals that it would become one of the few memorable policy achievements of the current Congress.  Well, the rule has held true about the deadlocked-by-polarization Capitol becoming only more so in the sessions before a presidential election. But the exception, by fits and starts, is growing ever less likely to be exceptional.

“Sentencing reform,” as it’s known on the Hill, is seriously stuck.  On the surface, it may not appear that way.  Just offstage, there’s a fundamental impasse that looks as if it can only be broken if one sitde caves in, thereby imperiling the highly unusual bipartisan coalition that has been the issue’s signature feature.

Complicating matters further, there are solid presidential and congressional campaign rationales for a deal, but also political arguments in opposition being at least as forcefully expressed. All this is on clearest display in the Senate, where the legislation looks to be riding a little wave of momentum but may be close to publicly coming off the rails – buffeted by anxieties about Willie Horton on the right and anger at Wall Street greed on the left....

[T]here’s a decent chance the [latest revised sentencing reform] bill will come to the floor this summer, assuming the appropriations process inevitably seizes up and there no longer is the need to devote the Senate’s time to spending bills.

Along the way, the measure is going to face one assault from powerful Republicans determined to kill it outright, and another from Republicans willing to love it to death. Ted Cruz of Texas, who returned to the Capitol this week vowing to press ahead with the combative outsider tone of his presidential campaign, and Jeff Sessions of Alabama, the first senator to endorse de facto GOP nominee Donald Trump, are leading the lambasting of the bill as going way too soft on crime.

A floor debate would give Cruz an opportunity to put his scorched-earth style for opposing legislation back on C-SPAN display.  And though Trump has not taken an explicit position on the bill, his many authoritarian statements suggest he’ll take Sessions’ advice and come out emphatically against it – especially if his likely opponent, Hillary Clinton, who’s become newly critical of “mass incarceration,” decides to endorse the bill. So it’s quite easy to envision law-and-order groups producing 30-second TV spots, evocative of the legendary Willie Horton ad from the 1988 presidential campaign, chiding even the GOP backers of the bill as pro-drug-dealer criminal justice weaklings.

The other big obstacle, which might prove even more problematic, goes by the much nerdier label, mens rea.  That Latin phrase, which translates as “guilty mind,” is law school shorthand for the way prosecutors are sometimes required to prove a defendant’s criminal intent in order to obtain a conviction. Under federal law, many categories of behavior are crimes only when the accused know what they’re doing is wrong and do it anyway – but some actions can bring convictions and imprisonment whether or not there’s any willful criminal intent.

Many influential Republicans, urged on by their business allies and such conservative fundraising forces as the Koch brothers, are eager to apply a blanket mens rea requirement across the federal criminal code.  They say the government has too much power to convict companies and their executives without having to prove any criminal intent. And they are eyeing the sentencing overhaul bill as their best available vehicle for getting the job done.

Lawmakers and activists from the Bernie Sanders wing of the Democratic Party deride this proposal as a thinly veiled effort to deliver a permission slip for more “What, me worry?” sketchy behavior to the same sort of bad actors in the corporate and investment worlds who melted down the economy eight years ago.  These liberal forces, too, have the ability to produce punchy campaign commercials targeting those in Congress who go along.

Even if the bill gets through the Senate without having to swallow the mens rea poison pill, top Republicans in the House are insisting that sentencing legislation will only move if it’s lashed together with their efforts to expand the need to prove criminal intent. The Obama administration argues the opposite, that the only way to sign a bill on sentencing this year is to negotiate protections for unwitting white collar criminals on a separate track.

One again this campaign season, it’s the small clusters of combative voices at the edges that are likely to have more power than any collaborative majority in the middle.

Not only does this piece effectively detail all the ways in which and reasons when the revised SRCA might not make it through the legislative process over the next six month, it also hints at an intriguing and perhaps disconcerting reality that for me has now emerged: GOP Prez front-running Donald Trump is now perhaps the political power-player with the greatest opportunity to "unstick" the SRCA.

If GOP Prez candidate Trump were to make nice to certain key GOP leaders like Paul Ryan and Chuck Grassley and John Cornyn (not to mention key GOP funders like the Koch brothers) by getting seriously and vocally behind the significant sentencing reform efforts by the "establishment right" (with or without mens rea reform), then I would increase my optimism about the odds of these reforms becoming a reality. But if Trump stays mum on this front, or especially if prodded by folks like Jeff Sessions and Chris Christie to oppose any reforms, I think the 2016 campaign dynamics will come to doom reform at least until we get to the lame duck period.

A few 2016 related posts:

May 12, 2016 at 11:41 AM | Permalink

Comments

Doug, people don't like being sold a bill of goods---people like Ernest Spiller weren't the victims of an injustice, and this "one mistake" stuff is sheer and utter prevarication.

And the 'rats' insistence on allowing lunatic prosecutions of people who get lost snowmobiling etc. is nothing short of immoral.

Posted by: federalist | May 12, 2016 1:00:36 PM

Just how much of a non-starter is this "reform"? Consider this. The Senate passed a bill 98-0 to address SCOTUS's Paroline ruling more than a year ago and yet the House still has never acted on it. It hasn't even been brought up in committee.

If Congress can't even agree to beat the holy crap of sex offenders anymore, it isn't likely agree on anything else in criminal justice.

Posted by: Daniel | May 12, 2016 1:39:33 PM

that should read "out of"

Posted by: Daniel | May 12, 2016 1:45:53 PM

By the way,, the whole mens area thing is a red herring. The easy compromise here is that mens rea refrom will only apply to a natural born person. That would satisfy the Dems and allow the Republicans to claim victory.

Posted by: Daniel | May 12, 2016 1:48:23 PM

The strange thing is, there is a companion House bill, currently unamended but mostly matching the actual sentencing portion, and another slightly more liberal corrections bill. Neither have mens rea reform in them. I keep hearing that's a hot-button in the House.

Posted by: Fat Bastard | May 12, 2016 3:27:12 PM

Colorado voters will decide this fall if slavery and involuntary servitude should be prohibited as punishments for crimes, an exception in the text of the federal constitution's 13th Amendment and the parallel state constitutional provision in Colorado. Bipartisan majorities of legislators had to support the bill to get it on the ballot.

https://washparkprophet.blogspot.com/2016/05/slavery-on-colorados-november-2016.html

Posted by: ohwilleke | May 12, 2016 8:18:22 PM

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