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June 6, 2017

Discouraging account of the state of federal criminal justice reform come summer 2017

On the heels of big talk in summer 2013 from then-Attorney General Eric Holder about criminal justice reforms, some pundits (as noted here) were quick to suggest that momentum for major federal sentencing reform might be unstoppable. Ever the political pessimist, I was then quite hopeful but still not all that optimistic that Congress would find a way to enact some sweeping federal statutory sentencing reforms before too long.

But fast forward four years to the coming summer 2017, and there no seems to be very little reason to be hopeful or optimistic about anything getting done in this space anytime soon. This new Marshall Project feature article by Justin George highlights that this is not only a story of a new Prez and Attorney General with different criminal justice priorities, but also a story of reform voices on the left and right coming to battle each other in ways that may ensure there in no path forward. The article is headlined "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened." Here are a few notable excerpts:

John Malcolm [is] a legal scholar at the Heritage Foundation, the influential conservative think tank [and] a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives — such as Malcolm — who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. 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. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

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. But, as Malcolm 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. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.... Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said. “For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”...

But [Senator Mike] Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now — he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)...

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work. Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”

June 6, 2017 at 12:00 PM | Permalink

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