Bench Memos

Six Reasons to Say No to Sentencing ‘Reform’

According to press reports, a small group of senators is working behind closed doors in Washington, D.C., to soften sentencing laws that apply to some of our nation’s worst criminals. Here are six reasons that Senator Chuck Grassley, head of the Senate Judiciary Committee, should say no to their plans.

1. The ambition, intellectual leadership, and logical momentum of sentencing “reform” — the opaque name given to the movement for mass sentencing reduction — all demand the release of, not just low-level pot dealers, but thousands of violent criminals. This has now become undeniably clear; there is no longer even an effort to conceal it. We need to understand this prepossessing fact: Sentencing reform is the first step on the road to more violent offenders on the street — and, thus, more violence. Is that what we want?

2. The movement to slash prison time for hard-drug traffickers and other violent criminals has little if any public support. “Reform” groups studiously avoid sponsoring a straightforward poll on the question. They understand that only a tiny minority of ordinary citizens would back reduced sentencing for drug traffickers — so best not to ask. Instead, the sentencing “reform” movement is strictly interest-group — and billionaire — driven, inside-the-Beltway.

3. The sky-high recidivism rate — reported after extensive research by Eric Holder’s Justice Department — insures that if we shorten sentences, the result will be more crime faster. There is no elegant way to put this, and no honest way to deny it. According to the Justice Department report, three-quarters of released felons go back to crime. If we release them earlier, they’ll go back to crime earlier.

4. Sentencing “reform” has done a clever job of conflating itself with the movements to cut back on overcriminalization and overfederalization, but they are different problems with different solutions. We can and should reduce the sprawling over-reach of federal criminal law, and particularly the sorts of laws that, ominously for those who value freedom, put the jailer’s fist behind the regulatory state. But to correct the over-breadth of the regulatory state should scarcely have us throwing out the baby with the bathwater. The public wants, and has hugely benefited from, our present system of strong sentencing against behavior that any normal person regards as criminal — hard drugs, illicit gun-running, violence, and rapacious fraud. Reining in other kinds of criminal laws, laws that have no proper purpose or traditional grounding in the reasons we use criminal sanctions, is a high priority. But it does not require, or even suggest, that we should dilute laws that punish behavior any normal person knows is wrong.

5. Republicans in particular should be able to understand that going back toward the soft policies of the past is a part of national pattern of decline and retreat, and of the lowering of standards throughout the culture. Treating criminals as victims will take us farther down a path that already increasingly gives breaks to those who sponge up resources at the expense of those who earn them.

We’ve been here before, in the Sixties and Seventies. It doesn’t work. The stronger policies adopted in the Reagan years have helped reduce crime by an astonishing 50 percent. Now, in the midst of a heroin epidemic, is no time to go back.

6. By relaxing the rules judges follow, sentencing “reform” will increase irrational disparity and invite disguised discrimination. I am not one of those who thinks judges, federal or state, discriminate against black people. (Most judges will enhance a sentence when the defendant has a long record or has engaged in violence, but to differentiate on the basis of relevant behavior is not to discriminate on the basis of race). Still, a system with firmer rules gives greater assurance of more nearly equal treatment than one that lacks them.

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