Sentencing Reform

Federal Criminal Justice Reform May Fail, and Everybody's Blaming Everybody Else

Sorry prisoners-you'll have to wait for the finger-pointing to stop.


Sen. Dick Durbin
Bill Clark/CQ Roll Call/Newscom

It's not clear whether lawmakers in both parties are looking to deflect blame or looking to shame other lawmakers into action (or both—those aren't contradictory goals), but it looks like the Sentencing and Reform Act may be on the ropes.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), told RealClearPolitics that the legislation, which came together with a lot of compromising and has been significantly watered down already, has stalled. He can't foresee anything happening with the legislation prior to July 15, after which the Senate will be on a break until after Labor Day, and then everything is going to be all about the election.

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So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed.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.

Both Cornyn and Durbin believe they can still get something passed under the next administration regardless of which party rules the Senate. But we should be concerned about how this massive populist fracture could affect the House vote. We're having a new revival of tough on crime tactics from the right (which Donald Trump thoroughly supports). And we're seeing on the left a desire to punish those "evil" corporations that's so strong they're willing to abandon due process to make it happen. This is an election that is heavily revolving around punishing one's perceived "enemies." Criminal justice reform pushes may face some significant challenges in the future.

Related: Weldon Angelos, recently freed from federal incarceration for marijuana crimes, is now trying to lobby Congress to pass the Reform Act.

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  1. This strikes me as legislation people want to be seen supporting, but which no one ever wants to actually pass.

    there’s a lot of that going around.

    1. “Ex-cons don’t vote; prison-guard unions do”

      1. I’m guessing the prison guard unions are heavily voting for Trump.

        1. They’re voting for the guy who wants to legalize?

        2. That’s totally where i was going with that point

          1. Trump wants to legalize?

            1. Trump thinks the poor put-upon policemen are being mistreated by those meanies in BLM. he’s a total believer in the “War on Cops”.

              1. I love how Hazel goes from slightly incoherent to totally disconnected in one post.

                1. She’s got her racistdar turned up to eleven.

            2. Trump wants to legalize?

              yes, when i said,

              “”This strikes me as legislation people want to be seen supporting, but which no one ever wants to actually pass.””

              ….i obviously was making a statement about Trump. Its in there, you just have to squint.

              If you still don’t see it, whack yourself a few times in the head with a claw-hammer.

    2. Imagine how ludicrously difficult it would be to effect actual legalization of, say, hard drugs. There’s far, far too much money in it all for the parasites in government.

      1. Its not just drugs. The CJ system is a cash cow. It isnt going to be reformed until Pols are in danger of losing elections over it.

    3. I don’t even get the posturing. Most voters don’t care about this. Even if they do care on some level, it’s not going to be the determining factor to get a vote.

      1. I don’t even get the posturing. Most voters don’t care about this.

        I think that’s right.

        My feeling? is that when a subject like “Criminal Justice Reform” comes up… legislators HAVE to go through the motions of pretending to give a shit, circulate a bill, make a few speeches, then quietly let the thing fail.

        Its part of their jobs to make it appear as though they at least ‘tried something’ every 5 years or so, so that the next time some advocate comes up and goes, “BUT WHAT ABOUT THE JAILS”… they can go, “You know man, we tried, and it just didn’t happen. Maybe in 5 more years.”

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  2. This is an election that is heavily revolving around punishing one’s perceived “enemies.”

    That’s the raison d’?tre for politics, if I’m not mistaken.

    1. Aside, I’ve always been confused about when to use raison d’?tat or raison d’?tre.

      I guess d’etat refers strictly to politics where d’etre is one’s reason for being.

      1. Conjugation mfucker, do you speak it?!

  3. Well, Trump proves that there aren’t any actual libertarians. Just a bunch of anti-establishment yokels who hate immigrants.
    Most of the Trump Republicans are anti-Black Lives Matter anyway.

    So what is there to gain, politically, from supporting it?

      1. I think your sarcasmeter needs adjusting.

      2. What she means is that you are a racist.

        1. If you’re voting for Trump, hate Black Lives Matter, and think there’s a War on Cops then you probably are.

          1. If I’m not voting for Trump, think BLM is mostly bunk, and know for a fact there is no War on Cops, does the BLM thing still make me a racist?

            1. Probably not. You gotta have at least two out of three.

          2. I think your if-than-so argument fell on it’s face. Into a ditch full of broken glass. On a Thursday.

            Never could get the hang of Thursdays.

          3. I don’t know why so many libertarians deny how much racism is out there. You can both admit there is a fuckton of racism out there and also, at the same time, be opposed to ridiculous accusations of racism by progs and to destructive government supposed remedies for such racism.

            1. You seem to have a pretty good idea of how much racism exists.

            2. The problem is that the word “fuckton” becomes highly subjective after you travel to other countries.

            3. The thing is that Trump seems to be providing cover for a lot of covert racists to let their true colors show. I don’t know if that’s a good thing or a bad thing.

              I just know that I’m horrified to discover that there are a lot of libertarians who are exposing themselves as racist lately. On these message boards and elsewhere.

      3. Are HazelMeade and Palin’s Rectal Impediment same-cloth?

        1. The Plug has been praising Hazel’s ownership of TEAM RED to the skies.

          If I were Hazel and I read that reaction from him, I would have a long, hard think about whether I was headed down the right path. At the very least, I’d be yelling at him to .

          1. I’m not worried about that path I’m on. I’m worried about the path Reason is on, and to a certain extent the path the libertarian movement (or at least a fraction of it) is on.
            There’s a whole lot of Trump shills around lately claiming that they are libertarian. And even some long-time libertarian commenters here who I formerly respected who seem to have abandoned any semblance of libertarian principles and are currently in the process of rationalizing voting for a mentally ill fascist, for various reasons.

    1. Feel free to ignore HazelMeade, she’s a troll.

  4. And we’re seeing on the left a desire to punish those “evil” corporations that’s so strong they’re willing to abandon due process to make it happen.

    That’s not the only reason the left desires to abandon due process.

    1. Due process falls under the “means” category, which they support and all, just as long as it does not obstruct achievement of goals in the “ends” category.

    2. Due process, like mens rea, is merely a loophole that allows the guilty to go free. After all, government doesn’t make accusations at innocent people.

  5. Meh, who cares if a bunch of stoners and junkies get stuck in prison?

    1. Because rape is bad?

      1. Is this going to turn into one of those stories wherein it’s proven that 1 in 5 prisoners has been raped?

      2. According to the PREA statistics I saw, these prisoners should be used to getting raped by people drawing a federal paycheck.

  6. Why do we need mens rea? Is anyone aware that it would make it harder to prove perjury because you would have to prove that the perjurer knew the falsity of the perjured statements?

    1. Well, the left only needs mens rea when it wants to argue Hillary shouldn’t be indicted.

      Why do I care if the ability of authorities to go after people for perjury is more difficult?

    2. We can’t make it harder to prove people are criminals and put them in jail. That would be bad.
      Being tough on crime is what libertarianism is all about.

      1. Was it the Koch brothers mention that got you all triggered? Aren’t they trying to add it?

  7. [?] prior to July 15, after which the Senate will be on a break until after Labor Day,

    The fuck? It seems like these people get time off whenever they want it.

    1. “‘Time off’?! Going home to meet with constituents is ‘time off’?!”

      1. “‘Time off’?! Going home to meet with constituents is ‘time off’?!”

        Another election?! This stupid country.

  8. Keerist. If they can find a fundamental right to abortion in the penumbras of privacy, which is itself an unstated basic axiom of the Bill of RIghts, why the hell is mens rea so hard to find? What kind of fucked up Supreme Court have we got?

    Rhetorical, folks, no need to tell me.

  9. OT: Judge Richard Posner: ‘No value’ in studying the U.S. Constitution

    Posner, a senior lecturer at the University of Chicago Law School, argued that the original Constitution, the Bill of Rights, and the post?Civil War amendments “do not speak to today.”

    However, its proponents may speak to Posner.

    1. This seems so… familiar.

      1. You mean the part about no one being able to deny the possibility that Posner fucks sheep?

    2. Seems like virtue signaling for a future Hillary presidency to fill the vacancy on the court with someone much harder left (Posner probably has someone in mind – a student of his way of thinking).

      The anti-originalist sentiment has been growing to a howl ever since Scalia died, particularly over the 2nd Amendment. I wonder what the framers would have thought about the idea that instead of repealing or amending the Constitution, which takes considerable effort, that people would claim that they were free to reinterpret its language to suit their desires. Don’t like the restrictions on government placed on it by the Constitution? Get your copy of the newest version of the Newspeak Dictionary, hot off the presses! In this edition, we redefine “well-regulated” and tell you how commas are meant to be interpreted, made retroactive immediately.

    3. So the father is as big a twat as the son.

    4. Posner wrote a book about the “decline” of public intellectuals. It seems that the public holds elitist intellectual snobs in contempt. If Posner has a mirror he has the tool necessary to explain the decline.

  10. Perhaps the leader of the free world could take some executive action?

  11. Gawker refuses to mention public sector unions in an article about “rubber rooms” at Riker’s.

    And a helpful bootlicker in the comments shouts down anyone who brings them up.

    1. From, presumably, said bootlicker “Small price to pay for the right to unionize.”

      And I’m sure he’s volunteering to be the one taking the beating from the guards in question.

      1. We can only keep our fingers crossed.

      2. I wonder if Pinkertons will still beat union members and their sympathizers if we pay them enough.

        1. BL-
          Some things make me long for the old days.

          1. I don’t care what anyone says, that onion tied to your belt is TEH HAWT.

    2. I thought Gawker was in Chapter 11 or something.

      1. I haven’t read that far yet, no spoilers!

    3. Public sector unionization creates appointees for life. Marxist planks are Marxist.

  12. It’s been almost 25 minutes since the last Trump article!

    1. More like an hour, actually!

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  14. Do society a favor……Keep Them In Jail!

    1. “Do society a favor……Keep Them In Jail!”

      Is this one of those sarcasms I have heard mentioned from time to time?

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  16. Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else
    Sorry prisoners?you’ll have to wait for the finger-pointing to stop.

    Federal criminal justice reform is not a good idea for a host of reasons.
    First, our beloved federal criminal justice has produced the fruit of mass incarceration. Amerika has one of the biggest prison systems in the world. If we work hard, incarcerate more people, and ensure there is no federal prison reform, then Amerika can be number one in the incarceration of their citizens. Just think! Number one at last!
    Secondly, The State can further bleed the little out of their hard earned tax dollars. As we all know, the masses spend too much of their money on trivial items instead of allowing our Dear Leader, and members of the Politburo, the Supreme Soviet Senate to confiscate 100% of their money to do as they please. Only through total confiscation of the unwashed masses’ money can we achieve noble accomplishments such as mass incarceration.
    Lastly, there is no such thing as “an innocent person” in our beloved socialist slave state. One is guilty until proven innocent. One only has to look at our wise and judicious civil asset forfeiture laws to see how true this is. But those laws, like other laws that assume one is guilty before proven innocent is for our own good.
    After all, when was our government ever wrong?

  17. The Left want to punish business and the Right wants to punish sin. Sentencing reform can’t help here, but bigger prisons, bigger prison budgets and more incarcerations can.

    Here’s a compromise – For every non-violent drug offender given 10 years in jail a non-violent white collar criminal must also get a 10 year minimum. Equal injustice for all.

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