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September 17, 2013 1:43 PM Sentencing Reform: Getting From Here to There

By Ed Kilgore

As noted here on several occasions, the country could be on the brink of a historic bipartisan reconsideration of federal drug and sentencing policies that haven’t worked and are wreaking great damage each and every day. David Dagan and Steven M. Teles explained how and why conservatives were suddenly open to sentencing reform in the November/December issue of the Washington Monthly. Now they’ve returned at Ten Miles Square to warn that progressives need to proceed carefully but decisively in the days just ahead if they want to see a rare bipartisan breakthrough actually occur:

The battle against unjust, wasteful prison sentences moves to Congress next week - and could become a tipping point in the conservative “war on prisons” we described in these pages last year….
Senators will hold a hearing Wednesday on two bills to reform federal mandatory minimum sentences. Kentucky’s Rand Paul has laid down a marker on the issue with a bill that allows judges to deviate from any such sentence. Meanwhile, Utah’s Mike Lee — the Tea Party favorite who defeated former Senator Robert Bennett in a primary — has teamed up with Illinois Democrat Dick Durbin on a measure that reduces the reliance on these sentences more surgically. (Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, has signed onto both bills.)

In the House, Kentucky Republican Thomas Massie and Virginia Democrat Bobby Scott have filed a companion bill to the Paul legislation. In addition, Scott has partnered with Utah Republican Jason Chaffetz on legislation that would allow federal prisoners to earn the opportunity to serve portions of their sentences in alternative custody, such as home confinement. The House has also convened a bipartisan task force on “overcriminalization.”

To consolidate this momentum, more Republican stalwarts will have to come out in favor of reform in the next few weeks. It certainly helps that the Paul-Leahy bill has won support from a group of former federal prosecutors and judges and from prominent conservatives including George Will. But — in keeping with Washington’s perverse logic — the cause of rallying conservatives could be set back if reform acquires a reputation as an Obama agenda item.
Already, some Republicans have grumbled - off the record and on - that Holder’s new policy of bypassing mandatory-minimum laws for some offenders was only the latest in a line of unilateral administration actions usurping Congressional authority.

Holder, of course, is a devil-figure to many congressional Republicans anyway—particularly in the House where Fast ‘n’ Furious has only partially been displaced by Benghazi! as a source of endless conspiracy-theory-driven fascination. So yes, unfair as it is, progressives in and beyond the administration need to keep Holder out of the limelight if they want to make progress on sentencing reform (there’s plenty of time for Holder to use his own powers unilaterally if Republicans fail to come to the table in Congress). As Dagan and Teles ruefully conclude:

Someday, the parties hopefully will compete to show which side can do the most to reduce mass incarceration. But we are not yet in that virtuous cycle. Allowing the issue to polarize now, before Republicans are fully committed to the reform position, could induce them to revert to the old, 1990’s “tough-on-crime” posture. Democrats, still traumatized by the memory of Willie Horton, would almost certainly be scared away from the issue as a result.
Rolling back mass incarceration is an urgent cause - but that’s all the more reason for liberals to play their hand carefully.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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