« Tenth Circuit deepens split over considering retribution in revocation of federal supervised release | Main | When are character letters NOT helpful in a fraud sentencing? When they are fraudulent. »

March 29, 2023

An encouraging(?) account of prospects for modest criminal justice reforms from the current Congress

The Washington Post has this new small piece about happenings inside the Beltway with this big headline "Is there any chance for criminal justice reform bills? Surprisingly, yes."  Here is the heart of part of the discussion (with one line highlighted by me for follow-up):

So in this tense partisan atmosphere, is there any chance Congress could consider even modest change to the criminal justice system?

Well, certainly nothing big — or even a bill along the lines of the First Step Act, a law to cut some federal prison sentences that President Donald Trump signed in 2018.  But some lawmakers and outside advocates say there are still opportunities to pass more limited legislation to make the criminal justice system less punitive.

Lawmakers including Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) and Sen. Lindsey O. Graham (S.C.), the committee’s top Republican, introduced a bill last month to eliminate the disparity in federal sentencing for trafficking crack and cocaine.  The bill passed the House on an overwhelming bipartisan vote in 2021 but died in the Senate.

And Reps. Kelly Armstrong (R-N.D.), David Trone (D-Md.), John Rutherford (R-Fla.) and Lisa Blunt Rochester (D-Del.) started a bipartisan task force last month to try to pass legislation to ease the barriers to prisoners reentering society when their sentences are up.  “There’s a ton of Republicans that just want to do the right thing,” Trone said in an interview on Tuesday before he spoke at a reception hosted by the conservative R Street Institute meant to build support for the legislation. “And there’s a minority of Republicans who live on the rhetoric of, ‘Let’s stop everything.’”

It’s too early to say whether any of the bills will pass.  But Jason Pye, who lobbied for the First Step Act while he was vice president of legislative affairs at FreedomWorks, a conservative group, said he thought Republicans could move legislation once House Republicans tire of passing other bills that stand no chance of clearing the Democratic-held Senate.  “As far as I’m concerned, this is one of the few areas where there is not only bipartisan consensus, but support [from across the Republican] conference to do something,” said Pye, who is now director of rule-of-law initiatives at the Due Process Institute.

Especially as we march toward a big election year, I am not sure that House Republicans are likely to ever "tire of passing other bills that stand no chance of clearing the Democratic-held Senate."  But I am sure that there are a range of (small?) federal criminal justice reform bill that could get to the desk of President Biden if serious folks on both sides of the aisle get seriously committed to actually getting something done.  In addition to the items noted above, for example, I continue to want to believe some form of mens rea reform could be a part of a bipartisan effort to make our fedeeral criminal justice system for fair and effective.

March 29, 2023 at 03:59 PM | Permalink


Yes, I noticed that article too, but have a somewhat different take on it, https://ringsideatthereckoning.substack.com/p/when-the-washington-post-touts-criminal

Posted by: Bill Otis | Mar 29, 2023 4:26:20 PM


I wanted to give you a heads up that someone is putting out batshit crazy essays with your name on it.

-A friend

Posted by: whatever | Mar 29, 2023 5:23:50 PM

Bill, I noticed this curious statement at the start of your piece: "When the murder rate is headed up, there’s only so much of a head fake you can sell." But the murder rate nationally is headed down. Based on the data collected from nearly 100 large cities (which is the best data we now have), murder was down over 5% in 2022 compared to 2021, and for the start of 2023 we are down an additional 10% (and in our three largest cities, Chicago, LA, NYC we are down around 20%). https://www.ahdatalytics.com/dashboards/ytd-murder-comparison/ But, I guess your whole point is that some folks do not let facts get in the way of a narrative.

Posted by: Doug B | Mar 29, 2023 5:37:55 PM

Doug, trends . . . .

Posted by: federalist | Mar 29, 2023 5:57:20 PM

federalist, there was a small downward trend in homicide rates from 2016 to 2019, then a huge spike in murders in 2020 likely due to pandemic and George Floyd factors. Then 2021 saw a small increase, which 2022 erased and the trend in 2023 is a sizeable decline so far. In terms of murder rates, the 2010s were the safest in modern history (and also a period of small but significant decarceration), and after a 2020 blip there are reasons to be quite hopeful about the current murder rate trends in 2022 and 2023.

The big murder increase in 2020 would have been very worrisome if it turned into a real trend, but now it seems it might prove to be more of a blip (again likely explained by pandemic and George Floyd factors). Of course, anything could happen the rest of 2023, but to claim now for the nation that "the murder rate is headed up" is just not factually accurate.

Posted by: Doug B | Mar 29, 2023 8:22:14 PM

Doug --

It's just a matter of time frame. Over the last eight years, the murder rate nationally is absolutely headed up. If you want to pick one or another segment of time within that eight years, you can produce any prefab result you want.

And there's this too: You'll often pick out one sentence and focus on that, while just taking a pass on the thesis of the article. I will leave it to others to assess how persuasive this is.

And lastly: "I guess your whole point is that some folks do not let facts get in the way of a narrative."

You sure got that right. Say for example the authors of the law review at your law alma mater who say we can abolish prison and be just as safe.

Posted by: Bill Otis | Mar 30, 2023 12:45:28 AM

whatever --

I wanted to give you a heads up that someone is putting out juvenile one-liners without your name on it -- which I have to concede is a wise choice, since no one is really to interested in claiming ownership of juvenile one-liners.

Posted by: Bill Otis | Mar 30, 2023 12:47:59 AM

You are right, Bill, that crime data can can be described in different ways over different time frames. I just think it quite important to note and celebrate that in the most recent time frame (2022 and 2023), the crime data from big city police departments indicate the murder rate is headed down, not headed up.

Posted by: Doug B | Mar 30, 2023 6:15:52 AM

I’ll take the Dems seriously about stopping gun deaths when I see fewer murderers with gun charges in their rap sheets. It seems like illegal possession of a firearm deserves cashless bail and probation until the murderer uses it. It then becomes a “gun problem.”

I also cannot take them serious when straw purchasing is seldom prosecuted.

A ban on the fictitious category of “assault weapons” is a perfect example of a lack of seriousness. The number of people killed by them is a rounding error compared to handguns.

Posted by: TarlsQtr | Apr 1, 2023 11:32:39 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB