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March 17, 2015

Sparring over sentencing reform lingo involving the media and Senator Grassley

LogoVia this recent Washington Post piece, I see that Senator Charles Grassley last week delivered this notable floor speech assailing the Smarter Sentencing Act.  Notably, the Post piece, headlined "The Orwellian deception of Chuck Grassley’s 'leniency industrial complex'," attacks some language in Senator Grassley's speech, a speech which itself attacks some language used by advocates of sentencing reform. Here are excerpts from the Post piece:

In a strongly-worded floor speech on Tuesday, Senate Judiciary Chairman Chuck Grassley (R-Ia.) blasted the Smarter Sentencing Act, which is currently before his committee. Grassley accused the bill's bipartisan supporters, including fellow Republicans Ted Cruz, Mike Lee and Rand Paul, of being part of a so-called "leniency industrial complex," a rather colorful turn of phrase.  In the past, he's defined this as "some people in Congress, the public, academia, and the media, who think that sentences that are being imposed on serious criminal offenders are too stringent."  Notice, though, the complete lack of "industry" in Grassley's "industrial complex."

The Smarter Sentencing Act is a fairly modest bill that does not in any way repeal mandatory minimum sentences.  But it does reduce some of them, and it gives federal judges more discretion in how to apply them, particularly ones that apply to nonviolent drug offenders.

That small step toward reform is evidently a bridge too far for Grassley.  He opened his speech with a litany of the dangers and harmful effects of the narcotics trade -- that heroin use is on the rise, that some terrorist groups profit from the drug trade, etc. These facts are hardly in dispute.

The problem is that Grassley believes, contrary to a mountain of evidence, that mandatory minimum sentences are effective tools for combating these problems.... Perhaps the most damning case against mandatory minimum drug sentences is that since they were instituted in the 80s and 90s, the use of illicit drugs has risen and their price has fallen dramatically....

Grassley accuses supporters of the bill of being "Orwellian" in their rhetoric.  In his essay Politics and the English Language, Orwell wrote that "political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness."  There may be no finer example of this than Grassley's use of the term "leniency industrial complex," which would seem to imply the existence of a powerful corporate network that would profit, somehow, from keeping people out of jail....

The only thing Orwellian about the debate over the Smarter Sentencing Act is Grassley's continued insistence that it would cost money, promote crime and benefit an unnamed "industrial complex" -- when in fact it would do the exact opposite.

I share the view that it is silly to speak of a "leniency industrial complex," and there are lots of other linguistic flourishes in Senator Grassley's floor speech that could be extensively picked apart for rhetorical excess and inaccuracy.  But, but the same measure, I understand Senator Grassley's expressed concern with terms like "low-level" and "non-violent" (echoing points previously made here by Bill Otis) because use of these terms in sentencing reform debates are "question-begging" and do involve "sheer cloudy vagueness."  Though I may myself be sometimes guilty of using or repeating these terms, I think a term like "less serious" is a better term that "low-level" (though still vague).  And what can and should qualify as violent or non-violent crime has been such a problem in federal law that the US Sentencing Commission has given up trying to fix this matter and the US Supreme Court might soon blow up a statute for its vagueness in this arena.

Semantic debates aside, the Senator Grassley speech appears most significant for its apparent indication that the mandatory minimum drug sentencing reforms in the Smarter Sentencing Act will not be going anywhere while he is in charge of the Senate Judiciary Committee.  I hope this does not mean all federal sentencing reform is dead, but it does suggest any significant reforms are going to be a long, hard slog.  On a more positive note for would-be reformers, Senator Grassley's latest floor speech indicates that he recognizes "[p]roblems do exist in the criminal justice system," including that "for too many times in America, equality under the law is not a reality [because] the poor do not receive the same justice in many instances."  Perhaps if sentencing reformers can start to emphasize economic inequalities regarding who gets slammed with the toughest sentences, maybe this key Senator will be more open to hearing ideas for reform 

March 17, 2015 at 11:07 AM | Permalink


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In 95% of cases, the adjudicated crime is fictitious and always less serious. Would the lawyer agree that decisions and sentencing should incorporate the indicted crime, to protect the public and to not base decisions 100% on fiction. I know fiction is the bread and butter of the lawyer profession, but have a heart for the victims, including the hundreds of future victims a year.

Posted by: Supremacy Claus | Mar 17, 2015 11:20:01 AM

As to non-violent drug dealers. Try selling some in their territory, report back.

What are we here, children? Like, grow up, already.

Summer research project for a 2L. Get a certificate of absolute legal immunity from the US DOJ. Show the certificate. Interview non-violent drug dealers. Simple question. How many people have you murdered? Report back.

Posted by: Supremacy Claus | Mar 17, 2015 3:26:34 PM

Nice debate at C & C. I am not welcome there unless I change my tone. I will gladly change my tone when the lawyer profession stops being so stupid. Idiots in utter failure in every self stated goal of every law subject. No exception save one. The lawyer is excellent at collecting the rent at the point of a gun. The profession is the biggest and most powerful criminal enterprise in the world, and has fully infiltrated every branch of government. We talk about the first $trillion corporation sometime in the future. No need to wait. The criminal cult enterprise is there, and inflicts an additional $trillion in damage to the economy every single year. I guess my tone is not civil.

Posted by: Supremacy Claus | Mar 17, 2015 4:12:36 PM

Kent is missing the most substantive commentary of all. No one is mentioning the indicted crime. No one is mentioning the serial murder careers of drug dealers. No one is mentioning the release of one of them will drop the real estate value of an entire street by 40%. They are just arguing inside baseball minutiae. Never mind the lawyer unemployment rate of today as the prime mover of this trend.

Posted by: Supremacy Claus | Mar 17, 2015 5:18:37 PM

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