There are some sensible things in this bill, and some things that are far less sensible. There appears to be a bipartisan consensus for sentencing reform, and I am increasingly confident that some legislation will find its way to the President. I continue to believe, however, that much of the narrative driving sentencing reform is hyper-focused upon drug offenses and insufficiently focused on violent crime. Heather MacDonald’s testimony discusses this phenomenon a bit. If the idea is to reduce or even eliminate meaningful prison terms for people who pose no danger to the community, then this legislation is both underinclusive and overinclusive. But the idea should also be to proportionately punish violent crime or crimes with meaningful connections to violent criminal organizations or criminal conspiracies. A political community committed to good order, justice, and freedom must concern itself not with “over-incarceration” or “under-incarceration,” but with incarcerating as many people as is necessary to keep the community safe, tolerably ordered, and prosperous.
One would think that gun crime, in particular, would be a subject of greater concern, given what we know about the realities of day-to-day gun crime in America. SRCA reduces the mandatory minimum under the Armed Career Criminal Act from 15 years to 10. Now is not the time to send mixed signals about gun crime, particular for gun crime recidivists. If anything, the ACCA minimum should be increased, not reduced, though I understand why this reform is being considered (to create an overlapping range). I also think a more important reform of ACCA would alter the definitions of the predicate offenses, particular after Johnson v. United States (which struck down ACCA’s residual clause as unconstitutionally vague). On the other hand, I am happy to see an increase in the statutory maximum from 10 years to 15 years for certain unlawful gun possessors. And I have no objection to fixing the “stacking” problem under 18 U.S.C. 924(c), provided that there is no reduction in the minimum for the first offense.
It is also notable that despite all of the talk about criminal justice reform, this bill is chiefly about sentencing reform. Those two are not the same thing. In a broader criminal justice reform effort, I would expect Congress to propose repealing some substantive criminal statutes, consolidating overlapping criminal offenses at the federal level, and devoting greater effort to strengthening mens rea elements in federal criminal law. I see none of that in this bill, except for a provision on studying the federal criminal code, a simple reporting provision which will prove mostly useless. To the extent that conservatives should be behind reforms in the federal criminal justice system, they should push more aggressively for substantive criminal law reforms that reduce (not eliminate, merely reduce) the federal government’s role in criminalizing conduct that is better handled through criminal law at the state level, if at all, and that ensures a robust system of prosecution and just punishment for those subjects that are properly within the federal government’s domain.
Perhaps there is less consensus between Republicans and Democrats on substantive federal criminal law reform, and more consensus on sentencing reform, thus explaining why sentencing reform is carrying the day. But I urge Congress to consider these substantive reforms, as well, particularly reform of federal mens rea law, on which I believe there is substantial agreement between conservative legislators, conservative judges, and the criminal defense bar. The Supreme Court has done a lot of the heavy lifting on the problem of over-federalization; it is time for Congress to do its part.