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July 1, 2016

With SRCA now "officially" dead ... send your "thanks" to (failings of) Prez Obama and bipartisan bungling

This Real Clear Politics article, headlined "Hopes Fade for Criminal Justice Reform This Year," serves essentially as an obituary for the effort to get significant statutory federal sentencing reform done before the end of the Obama Administration. Unsuprisingly, Bill Otis is dancing on the grave of these efforts via this post at Crime & Consequences titled simple "Victory." And Scott Shackford at Reason.com has this helpful post mortem titled "Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else," highlighting all the finger-pointing now taking place:

The Sentencing and Reform Act modestly updates federal mandatory minimum sentences to make them less brutal in non-violent drug cases and allows federal judges to invoke "safety valve" exceptions to sentence less than the mandatory minimum in certain cases. Probably the most important component of the law is that it would make the Fair Sentencing Act, which lowered the mandatory minimums for crack cocaine-related crimes to those of powder cocaine, retroactive. According to Families Against Mandatory Minimums (FAMM) this could help somewhere around 5,800 people currently serving sentences in federal prison. You can read FAMM's analysis of what's good and bad about the current incarnation of the Sentencing and Reform Act here.

 So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed. In response to frustration that the bill isn't going anywhere there's a chain of blaming that weaves throughout RealClearPoltics' report:

  • Grassley merely says he's "disappointed" because he worked hard to get more Republicans on board supporting the law.

  • Sen. Dick Durbin (D-Ill.), who wrote the bill, blames Republicans, particularly Senate Majority Leader Mitch McConnell (R-Ky.) for offering him "little to no hope" that the legislation would move forward. (He is undoubtedly also referring to conservatives like Arkansas Sen. Tom Cotton.)

  • Sen. John Corbyn (R-Texas) blames the House of Representatives for not moving more quickly, which he said would have created "momentum" in the Senate for passing the law.

  • Sen. Orrin Hatch (R-Utah) says the refusal to add reform to mens rea is holding back the legislation. "Mens rea" is the legal concept that convicting a person of a crime should require proving that they had criminal intent to do so. Not all federal laws have this mens rea requirement, and some Republicans want to add it. This has angered some Democrats and the Department of Justice because they believe it would make it harder to convict people (or more accurately, to force settlements) in white-collar criminal cases or cases of corporate misconduct.

  • Sen. Sheldon Whitehouse (D-R.I.) blames the Koch brothers for helping push the mens rea reform, calling it a "fatal poison pill." Cornyn, however, pointed out that the current Senate bill does not even contain this reform. There are concerns that it will be attached later on.

As the title of this post is meant to suggest, I think the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small "smart on crime" bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.

I will now likely use the long weekend (which I am about to start by going off-line for a while) to reflect on the current federal sentencing reform "big picture" circa mid-2016. I also think this news provides an approrpriate opportunity to begin a series of commentary posts about criminal justice reform during the Obama era, which I will be calling "Missed Opportunities: The Failure of Prez Obama to bring real Hope and Change to Federal Sentencing." Stay tuned.

July 1, 2016 at 10:29 AM | Permalink


Any chance that toad Grassley gets unseated soon?

Posted by: Fat Bastard | Jul 1, 2016 1:47:49 PM

Well, answering my own post, it appears that there is. Forty-one years on the federal tit. I don't care about your politics, that's disgraceful.

Posted by: Fat Bastard | Jul 1, 2016 1:49:56 PM

We get it Perfesser you hate Obama

Posted by: Don't Ask | Jul 1, 2016 1:54:04 PM

Meanwhile ....


Posted by: Joe | Jul 1, 2016 3:43:20 PM

(sorry -- this was covered -- can delete)

Posted by: Joe | Jul 1, 2016 3:53:10 PM

Ha ha ha ha ha. No jailbreak. No more Wendell Callahans.

Posted by: federalist | Jul 1, 2016 3:58:17 PM

I do not hate Obama at all, Don't Ask, in fact I think he is best CJ Prez I ever have had the opportunity to vote for. I just think he could and should have done/achieved a lot more in this space.

Posted by: Doug B. | Jul 1, 2016 6:09:26 PM

Doug, I agree Obama has given mire pardons and commutations than I thought would get squeezed out. The crack should be made retro active without the srca, but I understand how the big wheel grinds. It would give relief to lots.

Im guessing their logic is, these people were part of when crack was an epidemic, so they can sit their time out.

Maybe they can find more traction next time around, if it can get legs. Its really tough going when nobody wants to appear soft on crime. Those days are gone, need to be smarter, old ways didnt work.

Regards for your efforts and all who worked for it. Durbin is a very good rep and works hard.

Posted by: MidWestGuy | Jul 1, 2016 6:24:08 PM

Republicans are the majority in the House. It's their fault they can't get their act together to get a bill through.

You give the right way too much credit for CJ reform and highlight every column they write on the subject, then blame a Democrat when it doesn't happen.

Posted by: Paul | Jul 2, 2016 8:58:03 AM

The title says there is shared blame and think especially with politics as it is at the moment that the Republicans themselves would have to agree to pass something. There was a (to me valid sounding) sticking point about making it harder to convict certain crimes but didn't think that alone was the problem. Reasonable debate and all that though.

But, you skip to the end and see ""Missed Opportunities: The Failure of Prez Obama to bring real Hope and Change to Federal Sentencing." Stay tuned." That along with putting his name first does seem to put more blame on the President. Doesn't quite seem fair. Prof. Berman does say (though the field isn't great) Obama was the best in this area of those he had a chance to vote for. But still. Any "failure" here is more than "of Obama."

Posted by: Joe | Jul 2, 2016 10:33:52 AM

MY Opinion: If our Judicial system used common sense and Common Law, our prisons would only have the violent and those that do harm to others. If someone wants to harm themselves with no harm to others, they should not be sent to prison.

Posted by: LC in Texas | Jul 2, 2016 11:47:14 AM

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