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September 30, 2016

Could major federal statutory sentencing reform happen ASAP if Democrats take back Senate this election cycle?

The question in the title of this post is prompted by this notable new Politico article headlined "Ryan, McConnell split on prospects of criminal justice reform." Here are excerpts (with one line emphasized with my comments to follow):

House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell were on opposite pages Thursday on the prospects of passing criminal justice reform — another hurdle facing proponents hoping to get a bill to the president’s desk this fall.

Speaking at a news conference, Ryan (R-Wis.) doubled down on his commitment to advance legislation to reduce nonviolent drug sentencing requirements once lawmakers return to Washington in November.  The issue is a top priority for Ryan personally — though his House GOP conference is lukewarm at best, with some members concerned about looking soft on crime.  “I think it’s good legislation, I think the time has come, and we’re going to advance this issue as far as we can,” Ryan said.

Just a few minutes before that on the other side of the Capitol, though, McConnell offered a much different take. “It’s very divisive in my conference,” the majority leader from Kentucky said. “I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”

Criminal justice reform has pitted big-name conservatives like the Koch brothers who back the idea against law-and-order Republicans like Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama. It's unclear whether the political risk and calculation for Republicans will change after the election. Democrats broadly favor reform.

Ryan was bullish about getting it done. “We do know we have more work to do to talk to our members about the merits of criminal justice reform,” he said. “It’s very bipartisan and it's conservatives leading the charge on this: [Rep.] Raúl Labrador, [Sen.] Mike Lee, [Rep.] Bob Goodlatte. But there are a lot of our members who haven’t looked into the issue enough, and it’s those undecided members who have not formed opinions yet that we’re going to be communicating with in the weeks ahead.”

As indicated by the question in the title of this post and the sentence emphasized, I think the "political risk and calculation for Republicans will change" dramatically if (and only if) Democrats succeed in their effort to take back control of the US Senate. Specifically, and especially because House Speaker Paul Ryan continues to press his support for reform, I think Republicans in both the House and the Senate will come to see that their best chance to get a sentencing reform bill completed with only the terms GOP advocates most fully support will be in the lame duck session before Senate leadership transitions in 2017. (Indeed, if Dems win both the White House and take back the Senate in November, I think some current Dem supports of current bills might become the ones to resist lame-duck passage in the hope of developing and passing even more progressive reform in the next Congress.)

In other words, for those most deeply concerned and interested in seeking federal statutory sentencing reform, the outcome of Senate elections may be nearly as important or even more important than the Prez election.

September 30, 2016 at 09:10 AM | Permalink


Hmmmm, in the face of an 11% increase in murders?

But the increase is Heller, right Doug?

Posted by: federalist | Sep 30, 2016 9:41:05 AM

Federalist, very serious question: what is your sense of the relationship between federal drug sentencing and US murder rates?

Notably, not long after the toughest federal drug sentences went into effect in the mid 1980s, US murders rates spiked significantly and remained high from 1989 to 1994. In 1995 the most significant federal drug sentencing reform went into place --- that statutory "safety" valve --- and murder rates started a long and steady decline. Then in 2005 and 2007 and 2010 we get the next biggest set of major federal drug sentencing reforms (Booker, reduced crack guideline, the FSA, respectively). And murder rates keep going down through 2014.

The basic data is here, and intriguingly one might also notice that since federal drug sentencing reforms in the mid 1980s, it seems that murder rates decline ONLY when Democrats are in the White House : http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state#nat1970

Though I could make a (pretty reasonable) claim based on this data that we need federal drug sentencing reform in order to better deal with the latest 2015 uptick in murders --- a claim that would note, of course, that federal alcohol Prohibition produced a huge spike in murders (and other violent crimes) that come down only after federal "drug" reform --- I am more eager just to hear why you think (as a matter of good government, not politics) that an uptick in murders should lead federal leaders to now oppose drug sentencing reform.

Posted by: Doug B. | Sep 30, 2016 10:10:59 AM

"Though I could make a (pretty reasonable) claim based on this data that we need federal drug sentencing reform in order to better deal with the latest 2015 uptick in murders --- a claim that would note, of course, that federal alcohol Prohibition produced a huge spike in murders (and other violent crimes) that come down only after federal "drug" reform"

Seriously? It's one thing to argue that the drug sentencing regime generally creates the black market and that creates crime . . . . quite another to argue that, given the existence of the black market, that violence will go down if we lessen our response to crimes committed in the furtherance of it.

Your leap of logic is sadly not surprising, and it seems that, once again, you are engaged in a silly sophistry.

Maybe you're right and that we should legalize drugs. That's not in the cards though---so the question is what we do about the people who get the attention of the feds (generally serious criminals) whether or not you feel them responsible for their crimes (you've insinuated in here that since drug prohibition is the cause of the black market, the crimes committed in furtherance of it aren't really the fault of the actors).

Posted by: federalist | Sep 30, 2016 10:40:13 AM

I asked you a question, federalist, which you did not address: what is your sense of the relationship between federal drug sentencing and US murder rates?

I did not say we should "lessen our response" to serious drug crimes or crimials, nor do I think simply reducing applicable mandatory minimums for the lowest level offenders (which is all the SRCA does) in any way serves to "lessen our response" to serious drug crimes. Arguably, it lessens our response a bit to the less serious of all drug crimes, but the data I cited suggests that, at least in recent times, we have experienced a DECREASE in murders when we have lessened our response a bit to less serious drug crimes (perhaps because that leads the feds and others to focus on more serious and more violent drug criminals).

So, can you please answer the question rather than just engage yet again in your tiresome tendency to mischaracterize what I say and mean and then try to criticize me based on your mischaracterization.

Posted by: Doug B. | Sep 30, 2016 3:07:15 PM


You claimed that federal drug sentencing reform led to a safer America. And you've claimed elsewhere that drug prohibition leads to crime. I just put two and two together.

Letting criminals out early generally leads to higher crime.

Posted by: federalist | Oct 1, 2016 9:36:50 AM


Another example of a far too lenient criminal justice system

And then there's this: http://www.wfaa.com/news/crime/police-believe-undocumented-immigrants-crime-spree-was-random/327863728

The feds dropped the ball, and now two people are dead.

Posted by: federalist | Oct 1, 2016 1:51:31 PM

federalist, here is a perfect example of your tendency to mischaracterize (and perhaps misunderstand) my statements rather than to address the question I asked you based on your statements. In this thread, I never "claimed that federal drug sentencing reform led to a safer America." Rather, what I did, in response to your suggestion that federal drug sentencing reform efforts should be halted because of the uptick in gun murders in 2015, is ask for an accounting of "your sense of the relationship between federal drug sentencing and US murder rates."

For starters, federalist, I remain interested in having you address this query because (1) it is directly relevant to explaining what you meant by your first comment, and (2) you have generally stated that you view statutory sentencing reform as an important way to ensure that limited govt resources (e.g., prison beds, prosecutors/police) are focused on the most serious crimes and criminals.

Second, though I cited data showing interesting correlations between federal drug sentencing reforms to reduce the punishments for the lowest-level drug offenders and reduced modern murder rates, this is not anything close to a "claim" that "federal drug sentencing reform led to a safer America." Generally speaking, I think the "safety" of America is a product of dozens of different obvious and not-so-obvious factors beyond sentencing policies --- e.g., in another thread I have explained my view that the end of a conscription draft was likely one factor that contributed to a less safe America in the 1980 and 1990s, and I do think gun policies/practices are also a quite significant part of this complicated story. Indeed, because the federal system only processes less than 5% of all US felony cases, and generally is focused on less violent offenders than state systems, I especially do not think there is any strong causal claim to be made between any relatively small federal sentencing reform and any relatively big changes in crime rates.

That all said, and as I am inclined to surmise you agree with, I do think prohibiting non-violent victimless market crimes and then seeking to enforce those prohibitions with aggressive police/sentencing policies can and historically has increased crimes generally and violent crimes in particular. That does seem to be the most obvious less to draw from both alcohol and drug prohibition regimes in the US, no? And, perhaps to round this out, am I wrong to fear that the other kinds of cases you cite involving the "feds dropping the ball" might be related in some way to the fact that to many federal govt employees are getting paid to worry about marijuana policies than about truly dangerous violent criminals?

Posted by: Doug B. | Oct 2, 2016 10:59:56 AM

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