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.

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So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed.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