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April 7, 2016

Disconcerting report on the (declining?) state of federal statutory sentencing reform efforts in Congress

This new New York Times report on the status and fate of federal statutory sentencing reform has me getting ever closer to asserting that the Sentencing Reform and Corrections Act will not get to President Obama's desk before election day.  The piece is headlined "Garland Fight Overshadows Effort to Overhaul Sentencing Laws On Washington," and here are excerpts:

A bipartisan overhaul of criminal justice laws was supposed to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and President Obama. Instead, the members of the Judiciary Committee who wrote the criminal justice package are at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.

This feud over the nomination has overshadowed the effort to reduce mandatory minimum sentences and ease the transition from prison. Now supporters of an overhaul are worried about its fate, especially with the Senate about to turn to a series of time­consuming spending bills and the electionyear calendar approaching a point where little gets done that is not absolutely necessary.

“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” said Senator Richard J. Durbin of Illinois, one of the chief Democratic authors of the bill. “The ball is now on the Republican side of the net.”

Before the death of Antonin Scalia in February created a Supreme Court vacancy, the criminal justice measure had already run into trouble from skeptical Senate Republicans, notably Tom Cotton of Arkansas. He contended that the proposed sentencing changes would result in the premature release of violent felons. And there were whispers about Willie Horton, the furloughed inmate who committed a rape while on release from a state prison in Massachusetts, a case that Republicans used in 1988 to portray Michael S. Dukakis, then the state’s governor and the Democratic nominee for president, as soft on crime.

The internal turbulence led Senator Mitch McConnell of Kentucky, the majority leader, to urge Republican authors of the measure to consider changes to win over some doubters and ease party divisions. They have retooled the legislation, decreasing the chances of felons who carried guns in their crimes qualifying for lighter sentences, among other expected revisions. The changes have won the backing of at least one Republican senator, Thad Cochran of Mississippi, whose aides say will support the reworked bill.

One of its top Republican supporters says they are making progress. “We continue to do work on criminal justice reform, to try to meet some of the concerns that have been previously stated and to shore up support and show additional support both inside and outside the Capitol for those important reforms,” Senator John Cornyn of Texas, the No. 2 Senate Republican, said Tuesday.

One problem backers of the bill have run into is that senators are questioning the political risk of supporting it when the measure might not go anywhere before the November elections. At the same time, some on the left contend that the measure has been too watered down.

Hoping to restore momentum, leaders of the U.S. Justice Action Network, a coalition of conservative and liberal groups behind the legislative effort, plan to bring leading advocates from around the country to Washington next week. They will meet with undecided senators and House members to make the case for the measure. The group has also scheduled a briefing for Senate staff members on Friday with former senior law enforcement officials to try to build support and ease doubts among Senate Republicans....Other backers of the measure, including some in the Senate, are expected to step up their push for the legislation next week as well, and new endorsements could be coming.

In the House, Speaker Paul D. Ryan of Wisconsin recently reaffirmed his support for a criminal justice overhaul, calling himself a late convert to the cause and promising to move forward with legislation. “We’re going to bring criminal justice reform bills, which are now out of the Judiciary Committee, to the House floor and advance this,” he said in a recent question-­and-­answer session....

Some see a potential upside in the Supreme Court fight. Mr. McConnell could be more motivated to bring the criminal justice measure to the Senate floor to show that Republicans, who are under withering criticism from Democrats on a daily basis over the Garland nomination, can work in a bipartisan way and produce some accomplishments.

“Senator McConnell has one of the bigger incentives to work on this particular bill because it is one of the few, if not the only, things that the left and right agree on,” said Inimai M. Chettiar, director of the justice program at the Brennan Center for Justice, a nonpartisan policy institute affiliated with the New York University School of Law.

What happens in the next few weeks will determine if the criminal justice effort has a chance this year.  Failure to find consensus would represent a major defeat not just for President Obama and congressional backers of the legislation, but also for the unusual coalition of disparate political forces that united behind it as an overdue course correction from the tough­-on-­crime approach of the 1990s.

I am starting now to worry that more than a few folks on the left may be disinclined to encourage Democratic Senators like Dick Durban to elbow the SRCA into the queue based on the hope that a big Democratic victory in November would enable a push for a more robust and far-reaching reform bill.  Moreover, as every day passes, it seem to me increasingly easy given various 2016 election timelines for any and every fence-sitting Senator to urge leadership to postpone a vote on federal sentencing reform at least until the 2016 lame duck sesssion or in the next Congress.

A few 2016 related posts:


UPDATE: I just came across this recent Roll Call piece striking similar themes and headlines "White House Eager to Rekindle Criminal Justice Effort: Cornyn 'optimistic' but GOP fissures, floor time posing problems."

April 7, 2016 at 10:29 AM | Permalink


Sentencing reform is running into the same problem that every complex bill runs into -- the short calendar of U.S. legislative bodies, the permanent nearness of the next election, and the nature of the U.S. electoral system.

For all of the complaints about the Affordable Care Act (and some of them are justified), the one that is not justified is that it was rushed. Simply put, nothing complex or controversial is going to pass after April of an election year. If you want to pass a major bill, it needs to be done by the end of the first year of a Congress or soon after Congress returns for the second year. If the two houses do not get their original bills passed out of the originating house (i.e. the House passes a House version of a reform bill and the Senate passes a Senate version) before the 4th of July recess, the various factions involved in this bill will soon start thinking about whether they can get a better bill passed in 2017, and the odds of getting a bill out of conference and through both houses will dwindle.

Posted by: tmm | Apr 7, 2016 10:47:33 AM

Frankly, the current versions are so worthless, I would rather they go back to the drawing board next term than pass this garbage and pat themselves on the back.

Posted by: Fat Bastard | Apr 7, 2016 11:16:46 AM

I agree with the above post. My concern is that there is so much pressure to do something that the result will be so watered down that in the end the effort will not be worth the reward and Congress, having spent all that effort, will not be willing to take up any reform for years if not a decade.

Posted by: Daniel | Apr 7, 2016 1:08:12 PM

I'm with Fat Bastard. (That would make a great t-shirt).

Posted by: thinkaboutit | Apr 7, 2016 2:27:26 PM


Posted by: Joe | Apr 7, 2016 3:22:09 PM

While members of Congress may think drawing board will be next term, it probably will not. New president is likely to have five or six priorities that will come first. E.g., health care reform in 2009 pushing immigration reform back to 2010 at which point there was not even enough support for minimal reform. I have my doubts that criminal justice issues will be the top priority for a President Trump, a President Cruz, or a President Clinton.

Posted by: tmm | Apr 8, 2016 1:01:38 PM

For all of the complaints about the Affordable Care Act (and some of them are justified),

Well, yeah, even Chelsea Clinton can see the main problem--unaffordable to use the coverage

Posted by: federalist | Apr 8, 2016 4:08:50 PM

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