Bench Memos

The Sentencing Reform and Corrections Act of 2015: Post-Markup Reactions and Analysis

Last week the Senate Judiciary Committee passed the Sentencing Reform and Corrections Act out of committee by a vote of 15-5.  The fact that the bill was approved by the committee did not surprise me.  But what did surprise me, and what seemed to surprise the sponsors of the bill, was the interesting alliance of Senators Cruz, Hatch, Perdue, Sessions, and Vitter, and the intensity of their opposition to the bill. 

Most of the criticism from those Senators focused on their concerns that the bill would render more than 7,000 career criminals eligible for early release. (You can watch their statements here, starting at around 37:00.)  As I’ve previously noted:

One of the most controversial provisions in the bill would reduce the mandatory minimum prison sentence from 15 to 10 years for criminals convicted of three violent felonies or serious drug crimes — such as trafficking in large quantities of dangerous drugs like heroin — who have also been convicted of a felony for unlawful possession of a firearm. In other words, the bill reduces the mandatory sentence of four-time felons by five years.  

The argument that this bill applies only to low-level, non-violent drug offenders is just irreconcilable with the text.  The bill is also retroactive, so it would also offer relief for convicted criminals already in federal prison. 

Senators offered a handful of amendments to address those and other concerns, but all of the amendments were rejected.

Senators Cruz, Perdue, and Sessions proposed an amendment that would have eliminated the sentence reductions for career criminals and made the bill non-retroactive, which was rejected 15-5.

Senator Perdue proposed his own amendment eliminating retroactivity, joined by Senators Sessions, Cruz, and Hatch, but that too was rejected 15-5. 

Senator Sessions offered an amendment that would exempt crimes involving heroin, apparently directed at addressing the growing heroin and opioid epidemic.  Also rejected 15-5.

Senator Hatch discussed an amendment that would have established a default criminal intent (mens rea) standard in federal law, designed to address the problem of over-criminalization, but then stopped short of offering the amendment on the basis that it had already been made clear that all amendments would be rejected.

Although the bill’s sponsors clearly dominated the committee process, I doubt they will get this bill to the floor, at least not in its current form.

First, why would Senate leaders bother bringing it to a vote when the fault-lines established by the opposing Senators would expose Republicans to charges of being “soft on crime” in the upcoming election?  The provisions of the bill relating to violent criminals and retroactivity will only grow more controversial as other Senators and their staffers discover that (1) those provisions will encourage just about every federal prisoner to apply for retroactive relief; (2) processing such applications will impose serious time and resource costs on the federal court system, and (3) they will inevitably lead at least one federal judge (and probably more) to release a violent criminal who will turn around and commit a high-profile violent crime. With the long list of law enforcement associations opposing the bill, the negative ads practically write themselves. 

Second, the Senate bill’s sponsors seem to have miscalculated the impact that their closed process would have on their colleagues.  Senator Hatch, for example, seems to have been especially irritated by the fact that a small group of eight Senators reached their own deal on what the bill would contain and then swiftly rejected any attempt by him or his colleagues to modify the bill in any way whatsoever.  Senator Hatch’s concerns were echoed by former Attorney General Ed Meese, who labeled the process “the ultimate sign of Beltway arrogance.”

Third, until now the priorities of the over-criminalization coalition had been pretty bi-partisan, focusing on the explosive growth in federal criminal laws and the erosion of traditional safeguards likes meaningful mens rea requirements.  But everyone involved in this process in the Senate knows that this is the criminal justice reform bill, and that the committee and Senate leaders are highly unlikely to return to the topic for several years.  That virtually guarantees the death of mens rea reform (and all other criminal justice reforms) for the foreseeable future.  With a splintered coalition and an election approaching, Senate leaders won’t need many excuses to turn their focus to other legislation.

With these considerations in mind, I don’t think McConnell or others in Senate leadership will bother bringing the bill to the floor without serious changes. Those changes are still feasible, I think, but only after a meaningful opportunity for input from other members of the coalition.

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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