Two years ago at this time, a bipartisan coalition of Senators was pushing legislation that would have slashed mandatory minimum sentences for many federal drug crimes. Such a bill had cleared the Senate Judiciary Committee. However, Majority Leader Mitch McConnell wisely declined to bring it up for a vote in the Senate because his caucus was divided on the merits.
Now, Team Leniency is trying again. The same bill that died two years ago is before the Judiciary Committee.
It will breeze through that body. Three of the legislation’s main opponents two years ago — Jeff Sessions, David Perdue and David Vitter — are no longer on the committee (Sessions and Vitter are no longer in the Senate). Sens. Orrin Hatch and Ted Cruz remain and are likely to oppose the bill again, and Sen. Ben Sasse, a new member of the committee, might join them. But the committee will approve the leniency legislation, most likely with only three dissenters.
What happens then? I hope McConnell will make the same calculation he made two years ago under similar circumstances. However, Team Leniency, which includes the Majority Whip (Sen. Cornyn) and the Judiciary Committee chairman (Sen. Grassley), will push hard for a vote.
Meanwhile, many potential opponents of the legislation are focused on other matters, most notably immigration reform. The opposition troops have not yet been rallied.
On the plus side, though, Sen. Tom Cotton, who along with Jeff Sessions led the charge against leniency legislation two years ago, has his eye on this ball, notwithstanding his key role in the immigration battle.
The biggest difference between now and two years ago is, of course, that Donald Trump is president, not Barack Obama. The second biggest difference, for purposes of the sentencing reform debate, flows from the first — Jeff Sessions is the Attorney General.
Sessions still vigorously opposes reducing the mandatory minimums. His view is shared, I think, by President Trump. I’ve heard that the White House might make its opposition known publicly this week.
If Trump is against the leniency bill, it would be especially pointless for McConnell to bring it to a vote. Why split the GOP members and force them to vote on highly controversial legislation when the president doesn’t want the bill and likely would veto it?
My main purpose in writing this post is to call attention to the push for leniency legislation — to rally the troops. As for the merits of the bill, there are three main reasons why I oppose it.
First, the current mandatory minimums have been instrumental in the dramatic decrease in violent crime the U.S. has enjoyed since they were instituted. Why change a system that has been so effective in reducing violent crime?
Second, the leniency legislation would apply retroactively, Thus, thousands of prisoners could petition to be released even though they haven’t completed their legally imposed sentences. Given the high recidivism rate for federal drug offenders — around 70 percent — the legislation is guaranteed to yield more crime, and not just by those released early but also by those sentenced to less time under the bill.
Third, the leniency legislation grants judges too much discretion in sentencing. We know from the high-crime era before mandatory minimums that liberal judges will abuse that discretion to go soft on serious offenders. With a raft of new Obama-appointed judges, this error will likely produce the same sort of damage we lived through during that era.
A new development also militates against the legislation — former president Obama’s massive “jail break” in the form of clemency grants to more than a thousand federal drug offenders. If there were a small number of drug felons whose sentence was too harsh, surely the problem has been remedied, and then some, unless Obama left of few of these sympathetic offenders in jail so backers of leniency legislation could use their stories in the debate.
Thus, there’s no excuse for letting current felons out early. Indeed, given the availability of the clemency tool, the interests of justice do not justify lowering the mandatory minimums going forward, either.
As I said, the leniency bill is a done deal in committee. What counts now is how President Trump and Majority Leader McConnell respond.
I’m cautiously optimistic that the legislation will again die on the vine, but we shouldn’t simply assume that it will. We need to watch this one closely.