Mike Lee’s bogus conservative case for criminal justice reform

Senator Mike Lee takes to the pages of the Washington Examiner to make what he calls the conservative case for criminal justice reform. The criminal justice reform Sen. Lee has in mind is the softer sentencing and release of many criminals called for by the Sentencing Reform and Corrections Act of 2015 (SRCA), of which he is a sponsor.

Lee’s case for such reform turns out not to be conservative at all. He writes:

Our bill expands judicial discretion, so judges can treat offenders like human beings, not statistics, and punish them according to their particular circumstances, instead of indiscriminate bureaucratic guidelines.

Since when do conservatives favor empowering judges, a great many of whom are left-wingers, over relying on fixed rules that Congress (not bureaucrats) can control? Lee’s reform is an invitation to bleeding-heart liberal and ideologically leftist judges to put criminals back on the street much sooner than is consistent with protecting the public safety, and much sooner than the public is likely to prefer.

Conservatives also favor similar treatment for similarly situated individuals. Increasing the discretion judges have over sentencing is inconsistent with this principle. Criminals lucky enough to appear before liberal judges will tend to fare significantly better than criminals who commit the same offense under the same basic circumstances but find themselves before tough-minded jurists.

Lee goes on to contend that his proposed legislation is grounded in the principle of forgiveness. I’m surprised that a mind as formidable as Senator Lee’s embraces such a fatuous — such a question-begging — view.

Society forgives criminals when they have paid their debt to society by completing their sentence (individuals are free to forgive them sooner, later, or never). Societal forgiveness thus depends on the length of the sentence.

It can’t be the other way around — the length of the sentence cannot depend on forgiveness — because the principle of forgiveness doesn’t tell us how long a sentence should be. (Not unless one believes forgiveness demands that the length of the sentence must always be zero time regardless of the crime — a proposition that neither Sen. Lee nor any other rational person embraces).

Only a life sentence without the possibility of parole is inconsistent with societal forgiveness. But Sen. Lee’s legislation affects such sentences only to the extent that it reduces the mandatory life without parole sentence for a third drug or violent offences (note that the criminals who would receive this relief have already been forgiven twice, to some degree). If forgiveness is the touchstone, why not eliminate all life without parole sentences?

The reason is that the forgiveness principle offers no valid basis for determining the length of sentences. Some crimes deserve life sentences (or worse); others don’t. “Forgiveness” doesn’t tell us which are which. The sentence for a crime should be determined instead by factors like the severity of the offense, the past criminal record of the offender, and the other considerations embodied in the federal sentencing guidelines.

Sen. Lee has not made a conservative case for his legislation. He has merely collected a few catch phrases that he hopes will move conservatives, especially religious ones. The irresponsibility of Lee’s arguments reflect the irresponsibility of his legislation.

ONE MORE THOUGHT: It is ironic that Senator Lee and other conservatives want to grant more power to federal district court judges at a time when many conservatives are fretting about the ability to ensure the ideological soundness of Supreme Court Justices vetted by Republican presidents. A big part of the problem, some conservatives say, is that Republican presidents have tended to nominate Justices with only a short judicial track record.

District court judges receive a tiny fraction of the vetting Supreme Court Justices get. They almost always sail through the Senate. And, though many federal judges have experience on state court benches, many do not — they have no judicial track record. In addition, of course, at any given time Democrats, not Republicans, will have nominated a goodly share of the nation’s federal district judges.

This is not a group to which conservatives ought to want Congress to grant additional discretion over matters vital to the public safety.

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