Sunday, September 25, 2016

Sentencing Reform Stalled by 'Dysfunction' in Congress

      After Republicans gained control of the Senate in the 2014 midterm elections, the conservative Federalist Society held a program the next week to explore the seemingly favorable impact on prospects for criminal justice reform at the federal level. The time seemed right for Congress to act given the unified GOP control in the House and the Senate and the broad bipartisan support for reducing federal sentences, especially for low-level drug offenses.
      Two years later, a lot of cold water has been thrown on the hopes for action in Congress thanks to what the New York Times’ veteran Washington correspondent Carl Hulse aptly called “a stunning display of dysfunction” on Capitol Hill [Sept. 17].The bipartisan support that extended from President Obama to House Speaker Paul Ryan and beyond has not been enough to get a floor vote in either chamber on an issue important to liberals for humanitarian reasons and to conservatives for fiscal economy.
      Supporters are not ready to throw in the towel, however, even after committee-approved bills have lain dormant in the Senate and the House for nearly a year. Holly Harris, a one-time Republican political operative who serves as executive director of the bipartisan U.S. Justice Action Network, says the obituaries for the legislation from Hulse and others are “premature.”
      Harris says she is “extremely confident” that the House will vote on legislation in the post-election, lame-duck session thanks to continuing support from Ryan. She is less certain about a vote in the Senate, but points to strong backing for the Senate bill from Texas’s senior Republican senator, John Cornyn. And she believes that one prominent opponent, Arkansas’ Tom Cotton, has actually helped the cause with his “nonsensical” statement that the United States has a problem with “underincarceration,” not overincarceration. “No one believes that,” she says.
      The program at the Federalist Society’s annual national lawyers convention two years ago bore the title, “Criminal Sentencing Reform: A Conversation Among Conservatives.” Presiding over the 90-minute discussion was no less a conservative than William Pryor, a federal appeals court judge appointed by President George W. Bush and a former attorney general in his reliably red home state of Alabama.
      Pryor opened by acknowledging that the cost of crime was “undoubtedly high” and then added, “But so too is the cost of incarceration.” Pryor had been calling for lowering federal prison sentences as far back as 2005. Back then, he said that Alabama faced a prison “crisis” because of a 600 percent increase in the inmate population over a 30-year period as the state’s population rose only 30 percent.
      Federal prisons have similarly grown in population and in costs over the past 30 years, according to data cited by card-carrying conservatives Timothy Head and Grover Norquist. In an article they wrote for as members of the pro-reform Coalition for Public Safety, they quote statistics showing an eight-fold increase in federal prison population from 25,000 to 209,000 since the 1980s. The cost soared nearly seven-fold to $6.85 billion from just under $1 billion.
      In the early handicapping on sentencing reform, the Senate Judiciary Committee’s incoming chairman, Iowa’s Chuck Grassley, was seen as a likely opponent. Grassley in fact opposed the first effort at a bipartisan measure introduced in February 2015 by Utah Republican Mike Lee and Illinois Democrat Richard Durbin.
      By October, however, Grassley was persuaded to join with Durbin as original sponsor of a somewhat softened measure, S. 2123, that the Judiciary Committee approved on Oct. 22, 2015. Within a month, the House Judiciary Committee approved parallel legislation, H.R. 3713. Both bills generally would give federal judges discretion to reduce currently mandatory minimum sentences for low-level drug offenders and would reduce the mandatory sentence enhancements for crimes related to drugs or use of firearms.
      By February 2016, however, both bills were stuck in Capitol Hill limbo, calendared but not scheduled for floor votes. Bill Keller, the former New York Times editor who created The Marshall Project as a pro-reform site, wrote that “the vaunted bipartisan drive” behind sentencing reform was “not quite dead. But its pulse is faint.”
      Keller noted a then-recent poll that found 61 percent of respondents believe there are too many drug offenders in federal prisons and more than 75 percent oppose federal mandatory minimum sentences. “Voters are ready and wiling to reform the criminal justice system in ways that reduce the size and cost of the federal prison system, while improving outcomes,” the Mellman Group stated in summarizing the surveys.
      Harris views the presidential election as the culprit in stopping reform in its tracks. Both major parties included pro-sentencing reform planks in their platforms over the summer, she noted, but “there was no will to vote before the election.” In his article, Hulse casts part of the blame on the Republican presidential nominee Donald Trump for his recent campaign warnings, alarmist and false, about a supposed increase in crime rates in the country.
      The crime rate is in fact at historically low levels, but homicides are spiking in some major cities. Any influence from Trump, however, comes late in the game. Hulse is perhaps more on target in blaming Republicans who simply do not want to add to Obama’s legacy. Harris sees plenty of blame to go around. “If it doesn’t get done,” she says, “it will be a really big indictment of Washington.”

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