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February 14, 2016

Did any real chance of federal statutory sentencing reform in 2016 die along with Justice Scalia?

My mind continues to race with all the jurisprudential and political ramifications of the unexpected death of Justice Scalia yesterday.  But, as the question in the title of this post is intended to highlight, I fear there is likely a very significant legislative ramification that will disappoint those eager for federal sentencing reform.  Put simply, I think the chances Congress will pass any significant federal sentencing reform have become greatly diminished now that replacing a Supreme Court Justice is the main concern and focus for nearly everyone inside the Beltway.

One big reason I really think the coming controversy over Justice Scalia's replacement will impede continued forward movement on federal statutory sentencing reform is that opponents of Prez Obama see sentencing reform as part of his effort to produce a legal legacy.  (At the end of his recent floor speech against the leading sentencing reform bill, Senator Tom Cotton made this observation: "In the discussion over the Sentencing Reform & Corrections Act, there is much talk of legacy, and in particular the legacy of President Obama after he leaves office.")  With a SCOTUS pick necessarily about a President creating a legal legacy, I fear that GOP Senators will now be ever more disinclined to move forward with legislative reforms that Prez Obama favors.

February 14, 2016 at 10:27 AM | Permalink



Based upon my experience in DC one of two things will happen. Either the vacancy will suck all the air right out of the room OR it will serve as a convenient cover in which to sneak a bill past the public. My guess is that the first option is more likely but if there is a big push behind the scenes the second could come to pass. So don't give up hope, this might be just the time to redouble the effort.

Posted by: Daniel | Feb 14, 2016 1:18:19 PM

A sleeper issue is the fate of the Sentencing Commission, which will be down to 2 members at the end of this calendar year (and thus nonfunctional) absent replenishment. Two Democrats have been nominated (Judge Breyer renominated and Judge Boulware of NV), but with no corresponding Republicans, they have gone nowhere.

Posted by: anon | Feb 14, 2016 4:42:50 PM

Senator Cotton does not belong in Congress. He is a little too rough around the edges lets say. I am positive Pres. Obama is not backing the reform bill simply to leave a corny legacy. Maybe to leave his office knowing in his heart he has done some good for so many broken people who otherwise would never get a second chance.My son is one of those people.Sentenced to 90 yrs in prison back in 2004 for driving the getaway car in 3 bank robberies.The criminals he speaks of letting out into our streets are the other 2 co-defendants who cooperated & were released in 6 yrs.Just as involved as my son. The leader who actually robbed 5 banks at gun point plead guilty & will be released in 45 yrs.I think Senator Cotton needs to get his facts straight before he is responsible for doing more harm.

Posted by: karin wall | Feb 27, 2016 5:33:06 PM

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