In new push for releasing drug felons, consider the sources

Team Leniency for Drug Felons, the bipartisan group of Senators that wants, among other things, to let thousands of federal drug felons out of jail, is making another run at its vision of “sentencing reform.” Senators Grassley, Durbin, Cornyn, Leahy, Lee, Whitehouse, Graham, Booker, Scott, and Schumer will hold a press conference tomorrow to announce new provisions to the legislation proposed last October. They will also showcase new cosponsors. Mark Kirk, Thad Cochran, and (disappointingly) Dan Sullivan are expected to sign on.

Senator Orrin Hatch, who stood solidly against Team Leniency for Drug Felons last year will not be a new cosponsor. He tweeted: “The Current Sentencing Reform and Corrections Act is Dangerous for America.”

Hatch is right. Releasing thousands of federal drug dealers before they have served their sentence is inherently dangerous — all the more so given the current epidemic of deadly narcotics afflicting the U.S.

Team Leniency for Drug Felons likely will claim that, thanks to new provisions, no violent offenders will be released. This claim should be greeted with great skepticism. After all, the same Senators insisted last Fall that their bill wouldn’t result in violent offenders being released. But if that was true, why the need for new provisions that supposedly protect against this?

There are additional reasons to distrust the renewed pitch for lighter sentences and prisoner release. One important reason is the provenance of the legislation. It is, and has been, the handiwork of outsiders whose backgrounds suggest sympathies and biases not normally associated with Republicans.

Consider Carter Burwell. He clerked for U.S. District Judge John Gleeson in Brooklyn, New York. A Clinton appointee, Gleeson is a notorious advocate for lighter sentences for drug defendants and an outspoken critic of mandatory minimum sentencing. In 2012, he took the highly unusual step of encouraging former Attorney General Eric Holder not to charge drug mandatory minimums in certain cases.

Burwell came to Senator Grassley’s staff on “detail” in 2014. Now he’s Senator Cornyn’s deputy chief counsel. Burwell is believed to be the driving force behind the urgent efforts to rehabilitate and sell S. 2123, the leniency legislation that stalled last Fall.

Burwell isn’t the first “outsider” brought in on the Republican side to push the leniency agenda. Benjamin McMurray was the lead staffer who oversaw the development and marketing of S. 502, a bill similar to S. 2133 that was introduced by Senators Lee and Durbin.

McMurray served on a detail in Lee’s office in 2014 and 2015. He had previously been a public defender in Utah, and has since returned to Utah Federal Public Defenders Office.

Public defenders serve an important role, and McMurray has a good reputation. However, their sympathies tend to reside with the folks whom they defend. It would be understandable if Dick Durbin turned to a public defender to help craft and push for lighter sentencing. It’s disconcerting that Mike Lee did.

Burwell’s reputation is also good. However, it’s disconcerting that the former clerk of a notoriously lenient federal judge would be pulled from the Obama Justice Department to help Republican Senators write and push for legislation to free drug felons.

The use by Team Leniency of Burwell and McMurray helps illustrate that the leniency legislation did not arise organically from Republican staffers who ordinarily work with these issues. Rather, it is, in effect, a foreign product, alien to traditional Republican thinking (and the nation’s current thinking as well).

Indeed, Senator Grassely strongly opposed S. 502, the precursor of the current bill. I discussed his stunning 2015 flip-flop here.

Republican Senators could, perhaps, have more confidence in the leniency legislation if it were consistent with the long held views of Chairman Grassley and the product of his long time staff. Instead, it is the product of a sudden (and not satisfactorily explained) shift in Grassley’s position and the work of new staffers with backgrounds that suggest an undue bias against the sentencing system that has helped massively reduce crime.

Republican Senators could also have more confidence if the calming representations made last Fall by Team Leniency had withstood scrutiny.

With the Senate facing a serious time crunch, the coming push for leniency legislation will be a rush job. Most Senators won’t have time to study the revisions to S. 2133. They will have to take the new set of calming representations on faith.

For the reasons stated above, such faith is unwarranted.

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