Using the border agent case as a catalyst for federal sentencing reform

This year would seem to present a new opportunity for needed bipartisan federal sentencing reform.  Democrats have slim majorities in both houses of Congress, Booker declared aspects of the old rules unconstitutional, and most everyone agrees that mandatory minimum and crack sentencing rules are unfair.  The only snag would seem to be traditional "tough-on-crime" Republican opposition to moderating any federal sentencing rules.

But a new hot-button case — involving extreme sentences for two border agents due to the application of federal mandatory minimums — has lots of Republicans recognizing how federal sentencing can spin out of control.  Indeed, as this article details, Republican members of Congress are busy proposing all sort of kooky bills to try to remedy this case of sentencing injustice:

Several members of the House are drafting legislation to cut off funding specifically for the incarceration of border agents Ignacio Ramos and Jose Alonso Compean, sentenced to 11 and 12 years respectively.

The case unleashed a storm of criticism.  Lawmakers first called for hearings into why the Justice Department granted immunity to a suspected drug smuggler so he would testify against two agents who shot him.  Two bills were later introduced in the House — one calling on President Bush to pardon to the two agents and the other to vacate the federal court's conviction.

Rep. Ted Poe (R-Texas) has signed on to both proposals but knows the power of Congress is limited in vacating a court ruling, given the constitutional separation of powers. "There are constitutional issues with that," Poe told Cybercast News Service Friday.  "We do have the power of the purse. We can prohibit funds for the incarceration of the two border agents. That legislation was talked about last week. In the next week, it should be introduced."  Poe said while it was not his idea, he would sign on to the bill and expects many other members to do so as well, considering 50 members urged the president to pardon the agents and 70 signed on to a bill to vacate the court ruling.

It is a sad and telling commentary that the Republican reaction to these unfair sentences is to propose novel — and probably unconstitutional — new laws rather than to try to fix the old laws that has produced the injustice.  Though many may think the very prosecution of the border agents was unjust, the case is so troubling because of the sentences required by federal mandatory minimum sentencing law.  Had the agents received only, say, 11 and 12 months (rather than 11 and 12 years), this case would likely look a lot different.

Rather than bemoan reactions to the border agent cases, I want to issue a challenge to leaders in Congress: Will anyone in the House or Senate have the courage to use the border agent case as an opportunity to discuss and move forward with needed federal sentencing reforms?  I especially hope that Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein, who filed such a disappointing brief in Claiborne (details here and here), understand that the border agent case presents a unique and rare opportunity to start addressing the potential injustices of crude sentencing rules.

Some recent related posts:

• The furor over border agents' long sentences
• Interesting federal focal point for pardon/clemency debate
• Giving voice to Virginia Orwig
• Friday forum: rate the injustices