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No Action on Sentence Reform… and None Likely – Update for January 25, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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YOU’LL GET NOTHING AND LIKE IT

The 115th Congress has been in session for about three weeks now. The incoming Trump Administration has kept it busy, but not on criminal justice reform.


nothing170125A session of Congress is two years long, meaning that the 115th will run until December 2018. Both Houses of Congress are controlled by Republicans, although the Party’s 52-48 hold on the Senate is slight.

Under the law, each Congress starts fresh. That means that all of the bills pending last year – including the Sentencing Reform and Corrections Act – are gone. Congress will be starting over fresh – bills will have to be reintroduced and go through all the normal steps before they can become law. To become law, the measures must be approved by the Judiciary Committee of each chamber, and then passed by the full U.S. House and U.S. Senate, and signed by the president.

So far, there’s been a whole lot of nothing on criminal justice. With over 600 House and 180 Senate bills introduced, none addresses sentencing reform.

But will there be? Sen. Jeff Sessions (R-Alabama), now in line to be Attorney General when the Senate votes on it after Jan. 31, previously called Obama’s commutations an “unprecedented” and “reckless” abuse of executive power. President Trump, before he was inaugurated, complained that the prisoners whose sentences were being commuted were “bad dudes.”

Like Trump, Sessions conflates drug offenders with violent criminals. He argues that “drug trafficking can in no way be considered a ‘non-violent’ crime,” even when it does not involve violence.

What happened in Saginaw, Michigan, earlier this week does nothing to convince Sen. Sessions that he’s over-reacting. Demarlon C. Thomas, a former member of Saginaw’s Sunny Side Gang who had his 19-year prison sentence commuted to 10 years by Obama last fall, was shot to death in what appears to have been an execution. Two rifle-wielding gunmen broke into the halfway house, and while one assailant held 23 halfway house residents at gunpoint, the other sought out Thomas and shot him five times.

callahan160208This kind of graphic shooting, like Wendell Callahan’s murder spree in Columbus a year ago, provide grist for those – like Sessions and Trump – “who reject a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress,” as Reason put it. Although Sessions was a supporter of the Fair Sentencing Act of 2010 – which, ironically enough, was legislative inducement for the sentence reduction that put Wendell Callahan on the street – he opposed last year’s Sentencing Reform and Corrections Act, a bill that would have made the shorter crack sentences that the FSA approved in 2010 retroactive, reduced other drug penalties, tightened the standards for mandatory minimum enhancements for guns and career crime, and broadened the criteria for the “safety valve” that lets some drug offenders escape mandatory minimums.

So Congress has yet to propose any bipartisan sentencing reform. Given Trump’s pledge to stop the carnage, as well as the untimely demise of the recently commuted Mr. Thomas, expect nothing.

Gov Track (Jan. 22, 2017)

Reason.com, In Sentencing, Tough Is Not Necessarily Smart (Jan. 25, 2017)

The Saginaw News, Ex-gang member ‘executed’ after Obama commutes sentence (Jan. 24, 2017)

– Thomas L. Root

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Feb. 16 – Reconsidering Mandatory Minimum Sentences

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The Heritage Foundation, a conservative think-tank in Washington, has released a study of mandatory minimum sentences.   Among other matters, the study reviews two pending bills in the Senate.
The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.  The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.
Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, the study notes that such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.
The report’s Abstract says

Mandatory minimum sentences are the product of good intentions, but good intentions do not always make good policy; good results are also necessary. Recognizing this fact, there are public officials on both sides of the aisle who support amending some components of federal mandatory minimum sentencing laws. But before such reform can proceed, Congress must ask itself: With respect to each crime, is justice best served by having legislatures assign fixed penalties to that crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case within a defined range?

The Report is compelling reading, and represents further evidence that reform of Federal sentencing is a matter of importance to conservatives and liberals alike.