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April 29, 2007

Previewing the (quite unpredictable) new federal politics of crack sentencing

As I mentioned in this post, the usual federal politics of crime and punishment are all mixed up these days.  Consequently, political reactions to the US Sentencing Commission's new crack work (basics here) are not easy to predict. 

Just a few years ago, "tough on crime" federal politics produced the ugly Feeney Amendment in 2003, and few politicians would dare publicly support any measure to lower any federal sentences.  But a whole lot has changed in only four years.  President Bush has championed America as a "land of second chance," the Justice Department is no longer viewed as a paragon of virtue, both houses of Congress are now controlled by Democrats, and many leading Republicans (including presidential candidates Sam Brownback and Mike Huckabee) have vocally endorsed a kinder, gentler criminal justice system.

So what does all this mean for the US Sentencing Commission's new crack guidelines and the USSC's forthcoming report (which will urge further reforms)?  To begin, the new politics in part it explans why the USSC is finally moving forward on these issues: the USSC insiders surely know that new crack guidelines and suggestions for other reforms will get a warmer reception now than perhaps at any other time in the last decade. 

But exactly how warm will that reception be?  Is there a real chance that Congress will reform the crack mandatory minimums int he months ahead?  Might there even be a broader movement to eliminate all federal mandatory minimums?  Or will "tough on crime" rhetoric take center stage again?  Will any presidential candidates appreciate that the enfranchisement of felons in swing-state Florida could  make these issues very important in the 2008 campaign?  Only time will tell.

Some related posts on modern sentencing politics:

April 29, 2007 at 12:17 PM | Permalink


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My hope (and it is only a hope, not an expectation) is that the Sentencing Commission's actions will tip things toward a series of incremental reforms. I don't think we are going to get to 1-to-1, but there will be positive changes.

Remember that in 2002, the Commission simply sent a report to Congress without proposing changes to the guidelines or significant follow-up. This time they seem intent on both, and this may signal a new dynamic.

I would hope that the following things happen:

1) That Congress, with this prod from the Commission, changes the mandatory minimums in 21 USC 841,

2) That the Commission then adjusts the Guidelines further to allow lower guidelines in accord with this "give" in the mandatory minimums, and

3) That the Supreme Court signals in Claiborne or Spears that any crack guidelines are not ironclad on District Judges under the guise of "reasonableness" and deference to Congress.

Posted by: Mark Osler | Apr 29, 2007 12:48:31 PM

This is reminiscent of the backlash against the "Baumes laws" that spread across the county in the 1930s. Is it a coincidence that Baumes was also a Republican? Someone really witty ought to create a quotable epigram about learning from history because history repeats itself.

Posted by: George | Apr 29, 2007 2:07:01 PM

The Maryland legislature just voted to enfranchise former felons, too. As of July 1, 2007, a person convicted of a felony and “actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction,” is
”not qualified” to vote. See Md. Code, Election Law, § 3-102(b)(1) (as amended by 2007 Maryland Senate Bill No. 488, Maryland 422nd (Apr. 24, 2007)). The right is restored automatically upon completion of sentence of imprisonment, including parole or probation.

Posted by: abe | Apr 29, 2007 8:49:42 PM

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