Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?
At the spectacular Advancing Justice summit yesterday (basics here), a whole set of "in-the-know" folks stated that there is wide bipartisan support on Capitol Hill for federal sentencing reform. Specifically, as this brief Axios piece notes, Senator Mike Lee stated in the event's first session that "the Sentencing Reform and Corrections Act would have received 70 votes in the Senate if voted on last year, and would still get 70 votes in the Senate this year." (This Axios piece also report that Senator Lee "wants a vote on the bill before the end of the year.") Senator Lee's views here were echoed later in the day during a keynote speech by Senator Chuck Grassley and during a panel discussion by a number of in-the-know public policy advocates.
But, as optimistic as this all may sound, Matt Ford has this new this big piece at The Atlantic indicating that some key Democratic voices may be unwilling to move forward with sentencing reform proposals if mens rea reform is going to be part of the package. The piece's headline highlights why pessimism may again be the justified perspective here: "Could a Controversial Bill Sink Criminal-Justice Reform in Congress?: A debate over mens rea stalled the last push for reform. Now, a similar battle could be brewing." Here is a snippet:
A bill drafted by a group of Senate Republicans earlier this year would tweak the mens rea requirement in federal statutes, adding a default rule for juries to find criminal intent for federal offenses that don’t explicitly have an intent standard. (Mens rea is a legal term derived from the phrase “guilty mind” in Latin.) If enacted, federal prosecutors would need to prove a defendant’s state of mind to obtain a conviction for a host of existing crimes. Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration.
But some Senate Democrats fear the measure is far too sweeping and could be a back-door attack on federal health and environmental regulations that police corporate behavior. Rhode Island Senator Sheldon Whitehouse, a member of the Judiciary Committee, told me earlier this week that he wouldn’t support a sentencing-reform bill if it included the change to mens rea. “It would turn me into a warrior against it,” he emphasized. Chuck Schumer, the Democratic leader in the Senate, would also oppose such a bill, a spokesman confirmed.
Other Senate Democrats criticized a similar measure that passed the House during the last criminal-justice-reform push, which centered on a sentencing-reform bill. In January 2016, Illinois Senator Dick Durbin, a longtime supporter of reform, said that version of the mens rea proposal “should be called the White Collar Criminal Immunity Act.” (Like Whitehouse, Durbin serves on the Judiciary Committee, which would need to sign off on any mens rea- or sentencing-reform bills.) Massachusetts Senator Elizabeth Warren said in a speech the following month that the House proposal would “make it much harder for the government to prosecute hundreds of corporate crimes — everything from wire fraud to mislabeling prescription drugs.” Negotiations over criminal-justice reform ultimately collapsed that summer as the presidential election entered its final stretch.
I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences. Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere. In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.
So, to answer the question in the title of this post, I think I have to stick with persistent pessimism for the time being.
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