Sentenced to be snookered

The Weekly Standard has published an article Bill Otis and I wrote opposing the Sentencing Reform and Corrections Act of 2015. We thank the Standard for enabling us to sound the alarm on the effort, by Senators who should know better, to undo two decades of success in the fight against crime.

I also want to thank readers who, in response to my request, called Senators to demand hearings on the legislation. There is good news and bad news on this front.

The good news is that there will be a hearing on Monday afternoon. The bad news is that the hearing looks to be both perfunctory and one-sided. The first “panel” will consist of an Obama Justice Department official arguing in favor of the legislation. The second will consist of multiple witnesses only one of whom, as far as I can tell, will dissent.

It’s also notable that the hearing will take place on the Monday after a recess. I was told that the last time the Committee used this ploy was for the comprehensive immigration legislation in 2013.

In fact, there is a strong resemblance between what’s going on here and what occurred with the immigration legislation. In both cases, the legislation was drafted in secret by a “gang” of Senators (Chuck Schumer, Dick Durbin, and Lindsey Graham were part of both gangs). In both cases, the left got what it wants — amnesty/path to citizenship then; significant reduction in sentences and large number of freed prisoners now. In both cases, they got this in advance of any indication that the prerequisites for mitigating potential adverse consequences of the liberalization — then, improved border security; now, improvements in prisoner rehabilitation — will effectively be satisfied.

But in key respects, this deal is worse than the comprehensive immigration reform package. For one thing, most illegal immigrants haven’t been convicted of serious felonies. Most pose no danger of committing them. But contrast, all of the beneficiaries of the sentencing legislation are federal felons and the statistics we cite in our article show that most will commit new crimes when released from prison.

Additionally, the immigration bill at least came with provisions designed to improve border security — a core conservative demand. In this case, as Bill and I point out, the core conservative demand in criminal justice reform — decriminalization of certain “regulatory offenses” for which no mens rea is required — is not part of this legislation.

In defending the legislation before the Heritage Foundation, Sen. Mike Lee, one of the Republican co-sponsors, had to admit in response to a question that not a single federal crime would be taken off the books under his bill. Lee said that a response to over-criminalization is the next step.

One can only imagine what will happen if Senator Lee asks Patrick Leahy, Chuck Schumer, and Dick Durbin to take that next step. I expect that they will either laugh in his face or demand the further slashing, if not the elimination, of mandatory minimum sentences.

Why is it that Republicans, including some conservatives, always get snookered in these bipartisan deals? I’m not sure, but I’m convinced that the phenomenon has a lot to do with the rise of Donald Trump.


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