“Unity Was Emerging on Sentencing. Then Came Jeff Sessions.” So declares the New York Times in a story bemoaning the failure of Congress to pass sentencing reform legislation in 2016 and the recent order from Attorney General Sessions to end lenient charging practices at the Department of Justice.
Jeff Sessions certainly deserves credit for opposing the lenient sentencing legislation. His effort was heroic. But Times reporter Carl Hulse distorts the history of the failure of that legislation to get through the Senate when he suggests there was a bipartisan consensus in its favor until Sessions intervened.
For one thing, although there was never a bipartisan consensus in the Senate, the prospects for passing the leniency legislation peaked when the Judiciary Committee, under the leadership of its Chairman, Sen. Chuck Grassley, reported the bill favorably over Sen. Sessions’ strong objection. At that point, Sessions had already intruded. It was when other conservatives joined him that the bill faltered (more on that in a moment).
For another thing, unity was not emerging. The left was unified, as always. But conservatives were not united behind the leniency legislation.
The legislation had gained momentum because key Senators like Grassley, Sen. John Cornyn, and Sen. Mike Lee backed it in committee. But once other Republican Senators focused on the legislation, the tide turned.
Senate Majority Leader Mitch McConnell, who I suspect thought the legislation was a bad idea, took the position that he would support bringing it to the floor for a vote if it had the support of his caucus. It never obtained that support. As far as I know, it never got all that close.
This was not because of Jeff Sessions, though the early warning he sounded helped. Hulse describes Sessions as an “outlier.” By definition, outliers don’t stop legislation. Legislation is stopped when those who are more mainstream on the issue oppose it.
Let’s look at some of Hulse’s other errors. He writes:
As a senator, Jeff Sessions was such a conservative outlier on criminal justice issues that he pushed other Republicans to the forefront of his campaign to block a sentencing overhaul, figuring they would be taken more seriously.
As just noted, this sentence is at odds with the claim that Sessions is responsible for stopping the legislation. It’s also not really true.
Naturally, Sessions wanted other Senators to join him in the fight against the leniency legislation. What could be better, for example, than having Sen. Tom Cotton on your side in a battle?
But Sessions didn’t take “a back seat,” as Hulse asserts. After leading the opposition on the Senate Judiciary Committee, he continued to be in the forefront. For example, at a lunch on Capitol Hill attended by influential Republican Senate staffers, Sens. Sessions and Cotton spoke out together against the legislation.
The Alabama man wasn’t hiding behind his colleague from Arkansas, as Hulse wants us to believe.
Hulse also says this:
Despite the strong support, stiff opposition from Mr. Sessions and a few other outspoken Republicans — Senators Tom Cotton of Arkansas and David Perdue of Georgia among them — stalled the bill in the Senate and sapped momentum from a simultaneous House effort.
Wrong. The bill stalled because it didn’t get enough support from the caucus. The opposition of Sessions and “a few other outspoken Republicans” wouldn’t have been enough to dissuade McConnell from bringing it to the floor — not with the Chairman Grassley and Majority Whip Cornyn, backed by certain conservative elites (see below), pushing for the bill.
Hulse’s entire slant on the legislative battle is misleading. He wants to portray lighter sentencing as a conservative cause that was halted by a “badly misguided” man “living in the past.”
In reality, sentencing reform was the cause of certain conservative elites. It gained a good deal of momentum from the efforts of the libertarian Koch Brothers. It also helped, especially with Grassley, that certain evangelical leaders favored leniency on religious grounds (redemption, etc.). The Heritage Foundation was also on board.
But conservative foot soldiers had little use for lenient sentencing. I learned this first hand when I spoke out strongly against the legislation — e.g., in this Weekly Standard article (co-authored by Bill Otis) and in a media appearances and closed door meetings with conservatives. Frankly, I was pleasantly surprised by how resistant conservatives were.
As for “living in the past,” yes, the past did factor into the opposition to lenient sentencing. Conservatives remembered what crime was like before mandatory minimum sentencing and how it plummeted afterwards. But the present played a role too. Conservatives are aware that, as incarceration rates are decreasing, violent crime is rising.
This leads me to a final thing that intruded as the fight over leniency legislation was reaching its climax — the 2016 Republican primary campaign. Sen. Ted Cruz, a member of the Judiciary Committee, had been sympathetic to sentencing reform. However, he did not back the legislation pushed by his friend Sen. Lee in 2015-16. Neither did Sen. Marco Rubio.
During this period, Cruz was on the campaign trail, spending lots of time in states like New Hampshire, then at the center of the opioid epidemic (by later in 2016, the epidemic was so widespread that it no longer made sense to speak of a center). Given what he heard from Republican voters, Cruz was not about to advocate softer sentences for drug dealers.
Neither, as it turned out, was the Republican caucus in the Senate. Sessions’ role was not insignificant, but what really intruded was reality.