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November 6, 2006

How could and will this election impact federal sentencing policy?

I have previously blogged here and here on some state sentencing issues that have arisen, and some state sentencing proposals that are on the ballot, this election season.  Now my thoughts are turning to how the mid-term election might impact federal sentencing policy.

The current betting line predicts that Democrats are likely to be taking over the House, but suggests the Senate is likely to stay (barely) in the hands of Republicans.  Whatever the exact outcome, I think any shifts in federal sentencing policy will be subtle, but still consequential.  Here's my rough take.

I think the prospect of a "topless" guidelines Booker fix is diminished if Democrats gain control of either or both houses of Congress.  Also, I hope (but I am not confident) that there will be less emphasis on statutory mandatory minimums if Democrats are in power.  Yet, because many Democrats still embrace the Clintonian strategy of being "tough on crime," I doubt we will see any truly major shift in federal crime policy even if Democrats win both houses of Congress.  Ultimately, what may matter most are the concerns and priorities of those persons who take over key leadership positions on judiciary committees.

UPDATE: Reflecting on these matters over my morning coffee led me to perhaps the two biggest federal sentencing questions that could follow the Democrats gaining more power in Congress:

  1. Would the chance of a fix to the 100:1 crack/powder ratio improve?
  2. Would federal judges and the US Sentencing Commission feel a bit freer to embrace Booker discretion based on the belief that Congress would be less likely to respond negatively to less harsh and rigid sentencing rules?

November 6, 2006 at 07:54 AM | Permalink


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Tracked on Nov 6, 2006 2:18:19 PM


I wouldn't expect Dems to do anything but pass "tuff-er" legislation, ESPECIALLY if they win both houses, probably starting with meth, pandering to red-staters. Certainly D leadership would not push reforming mandatory minimums before the 2008 elections, guaran-damn-teed.

On federal sentencing policy there is, sadly, a bipartisan consensus for making things worse, generally speaking, because incumbents benefit from a 'tuff' stance without running up against budget constraints that sometimes force pragmatism on the states.

Posted by: Gritsforbreakfast | Nov 6, 2006 8:44:23 AM

I do not expect Congress to do anyting about the 100:1 crack-powder discrepancy. If the Democrats make any attempt to rationalize sentencing, Republicans will gleefully seize the opportunity to call their opponents "soft on crime."

As the old saying goes, "Only Nixon could go to China." Likewise, only Republicans can get soft on sentencing, because they're the only ones who can do it without getting penalized at the ballot box.

Posted by: Marc Shepherd | Nov 6, 2006 11:00:49 AM

I agree with the other comments; Democrats are slightly less likely to bring about positive change. Frankly, these issues are less about political parties and more about thoughtfulness and statesmanship (which exist on both sides of the aisle, if only in small measure).

Posted by: T.E. | Nov 6, 2006 12:30:57 PM

If the California Legislature is any guide to what a Speaker Pelosi would do (and I think it is), look for policies favorable to defendants whenever the issue is complex or not high-profile. Most of the pro-defense legislators will still run for the cracks like cockroaches when a strong light of publicity is turned on, but it rarely is.

Assuming the Senate remains in Republican hands, and we know the White House will, we are probably in for two years of deadlock where nothing significant happens legislatively in criminal law.

Posted by: Kent Scheidegger | Nov 6, 2006 1:43:19 PM

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