Judiciary committee goes through the motions in hearing on major sentencing reform

This afternoon, the Senate Judiciary Committee held a hearing on the Sentencing Reform and Corrections Act of 2015. Echoing what many have said, Chairman Grassley called this legislation “the most significant criminal justice reform legislation in a generation.” Yet, the Committee saw fit to hold only three hours of hearings on it.

Moreover, the hearings took place on the Monday after a long recess, a nearly unprecedented move by the committee that minimized the number of Senators who were able to attend. By my count, only 11 Senators participated. The Committee has 19 members.

Nine witnesses testified, only two of them opponents of the legislation. I was pleased, though, that Heather Mac Donald was among them. As John has described, she attacked and destroyed the “poisonous” false narrative that the criminal justice system is plagued by racial bias. Though many on the Committee no doubt adhere to, and indeed spread, this narrative, none had the guts to question Mac Donald about the matter (sorry John).

On several occasions, witnesses testifying in favor of the legislation inadvertently made admissions that undercut their case. I’ll save my discussion of these points for a later post, and confine myself to the following observations:

First, Former attorney general and federal judge Michael Mukasey testified in favor of the legislation. Muckasey is formidable guy, and I was concerned when I learned he was on the witness list and prepared to support the bill.

However, Mukasey’s testimony was quite muted. Indeed, he used only about a minute of his allotted five. In essence, Mukasey said that he thinks the bill is reasonable, but we will have to monitor its impact carefully if it passes.

Unfortunately, if the legislation has an adverse impact on the crime rate, as it surely will given the statistics on recidivism, it will be too late. The victims of the crimes will have no remedy, and the likelihood of restoring the present sentencing system is virtually zero given the posture of the Democratic party (several Democrats said today that this bill doesn’t go far enough and should be seen as only the beginning of sentencing reduction).

Ironically, the only time Mukasey mustered any passion was when, in response to Sen. Hatch, he discussed the problem criminalizing acts where there is no criminal intent. This leads to my next observation.

Second, Senator Hatch said that the legislation “must include” a de-criminalization component. As written, the bill does not eliminate a single federal crime, even though conservatives have complained for years about the existence of federal crimes that include no mens rea element. Hatch appeared strongly disinclined to support this legislation unless the over-criminalization problem is addressed. And it won’t be, trust me.

Third, my biggest groan of the day (a silent one, of course) came when the usually sound Sen. Cornyn expressed the hope that Sen. Sessions — the Committee’s most outspoken critic of the legislation — can help make the bill better. Please. This is typical “gang” legislation in which a group of Senators freezes out possible dissenters, writes complex and lengthy legislation behind closed doors, and pushes it through committee while opponents are scrambling just to read and understand it.

I’ve heard, moreover, that the amendment process in committee will be severely restricted. How is Sen. Sessions supposed to make this legislation better under these circumstances? From what I understand, the gang ramrodding this legislation through committee wouldn’t even tell Sessions’ staff who the witnesses at today’s hearing would be until the list was released to the public.

If the sentencing reform legislation had merit, its proponents wouldn’t be acting this way.

Finally, there was an interesting exchange regarding where James Comey, the head of the FBI, stands on this bill. During her testimony, Deputy Attorney General Sally Yates seemed a little cagey on this subject. So Al Franken asked her flat out where Comey stands (it took him two shots to ask this coherently — Yates had to ask him for clarification after his first attempt).

Yates answered that Comey supports “the goals of sentencing reform.” That’s different, I assume, from supporting this piece of legislation.

I’m glad Al asked.

I’ll have more to say later this week about some of the substantive arguments made by proponents of the legislation during the hearing.