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August 5, 2015

Latest tea leaves concerning Senator Grassley's coming sentencing reform bill

This new Wall Street Journal piece, headlined "Senator Holds Key to Sentencing Changes," provides a few more juicy details about what we might expect to emerge from the sentencing reform work of the critical chair of the Senate Judiciary Committee, Charles Grassley. Here are the excerpts that most caught my eye:

Now, as lawmakers in both parties and both chambers of Congress show greater interest in easing policies blamed for prison crowding, Mr. Grassley is presiding over final negotiations of a group he tasked with integrating assorted criminal justice proposals into a single package. Mr. Grassley, a four-decade veteran of Congress, said he plans to unveil a bill after Labor Day.

The most likely outcome of the talks, according to aides and lawmakers involved in the negotiations, is legislation that would combine programs to reduce recidivism and create more opportunities for early release with provisions giving judges some discretion to sentence below the mandatory minimum for certain drug defendants. “I think it’s fair to say there are going to be a lot less people that are going to have mandatory minimums apply, but it’s not going to be this across-the-board cut,” Mr. Grassley said, warning that drastic reductions in sentences would weaken penalties for serious offenders.

Mr. Grassley’s position — which fellow committee members say has evolved since March, when he warned of a “leniency industrial complex” — reflects a readjustment on criminal justice among many conservatives, who increasingly are joining Democrats in calling for legislation aimed at reducing mass incarceration....

Among Republicans, the party’s libertarian wing was first to back sentencing overhaul, and more mainstream Republicans have followed.... Mr. Grassley, once seen as a chief roadblock to change, is in a position to convert that momentum into a bill committee members say could clear the Senate this year with bipartisan support now rare in a deeply divided Congress.

But it isn’t clear whether committee members with fervent objections to mandatory minimum sentences will sign onto a proposal shorn of the more sweeping changes they envision. More substantial reductions were embraced in a bill that cleared the committee last year but never made it to the floor. Its sponsors, Sens. Richard Durbin (D., Ill.) and Mike Lee (R., Utah), this year reintroduced the bill, which would halve mandatory minimum sentences for some nonviolent drug crimes and give judges more flexibility to hand down sentences below the mandatory minimum.

“He’s offering a different approach than we started with,” Mr. Durbin said of the agreement Mr. Grassley is brokering. “It’s a much different approach, and it’s a harder approach.” Still, he said, he is encouraged that Mr. Grassley would entertain any legislation revising sentencing law. “Let me tell you, he was not even at the table initially, and now he’s at the table,” Mr. Durbin said.

A compromise bill may still encounter conservative resistance. One of the committee’s more cautionary voices is that of Sen. Jeff Sessions (R., Ala.), who said tough criminal code has been at the heart of a reduction in violent crime.

On the other side of the Capitol, Mr. Boehner has endorsed a bill by Reps. Jim Sensenbrenner (R., Wis.) and Bobby Scott (D., Va.) that would loosen some sentencing requirements, while also addressing probation and recidivism....

Some in Iowa have sought to hold Mr. Grassley to account for the ballooning prison population. A state report released last year estimated that Iowa’s prison population could swell 39% over the next decade. In May of this year, the Des Moines Register, Iowa’s largest newspaper, urged Mr. Grassley not to stand in the way of changes to federal sentencing laws. Home on a recent weekend, Mr. Grassley faced questions about criminal justice at two town meetings — a surprise, he said, as it marked the first time this year constituents had raised the topic. “They were happy that it looked like we were going to get a bill,” he said.

As I explained in recent prior posts here and here reporting on the latest Grassley reform forecast, I am fearful that politics and process may continue to impede any significant federal sentencing reform from getting done before the end of the year.  Because it would appear that Senator Grassley has now invested considerably in developing a reform bill to his liking and given that he is a critical player for any reform proposals moving forward, I sincerely hope that the bill he unveils in September is perceived to be "good enough" to garner the support needed from all quarters to have a real chance at becoming law.

Some prior related posts:

August 5, 2015 at 10:05 AM | Permalink


My hunch says that the Chair's bill will eliminate some mandatory minimums for the least "serious" offenses, reduce the mandatory minimums for others, but will otherwise keep basically intact the current rules governing the sentencing process.

As I have previously indicated, I believe that this is generally the right approach. The legislature defines the authorized ranges of punishment (including when courts can grant probation or parole) and it is the obligation of the judiciary to sentence within the authorized range of punishment. In reality, every sentence has a "mandatory minimum" (even if that minimum is probation or a day in jail or a $1 fine) and a "mandatory maximum" (even if that maximum is death). The issue is not that the legislature has set a range of punishment, but what the proper range of punishment is for an offense.

A related issue is what facts should automatically "bump up" the range of punishment (i.e. what makes theft into robbery into aggravated robbery) and how much should that "bump" be to avoid giving the prosecution too much leverage in plea negotiations. However, short of a massive change to the traditional mode of prosecution, I do not think that there is any workable cure to complaints that the system gives too much discretion to prosecutors to either seek the maximum available offense or offer a deal to a lesser charge. I don't think anybody wants a system that mandates that the prosecution charge the maximum offense supported by probable cause and bars them from bargaining down. Any other system requires the exercise of discretion and I am leery of replacing a prosecutor who is at least indirectly accountable to the public with a judge who is not. Some aggravating elements should make a big difference in what a person gets as an armed robbery in which somebody is shot is not similar to an unarmed purse snatching and there should be a big gap between the available punishments for the two offenses.

Posted by: tmm | Aug 5, 2015 6:03:58 PM

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