Rethinking SRCA

I posted last year on the Sentencing Reform and Corrections Act, now pending in the Senate.  I have expressed some reservations about the bill, some of which are now the subject of a move to amend the bill to address the concerns that I and other much more prominent critics of the bill have noted.  Politico’s reporting is here.  I don’t typically post on a subject when I think it has been adequately covered by others already, but I made an exception here because I thought this subject was worth mentioning in a fresh post, and because I thought it was also worth directing readers to other useful commentary on the matter.  Doug Berman at SL&P has a new post up, as does Bill Otis at C&C here.   Notably, they both focus on Arkansas Senator Tom Cotton’s recent floor speech concerning SRCA.  Senator Cotton’s remarks are here.  They are worth a read.

In addition to agreeing with some of the concerns expressed by Senator Cotton and others, I continue to believe that reducing sentences for major drug trafficking crimes and violent crimes, especially those involving firearms, would be a grave mistake.  I acknowledge that with drug crime especially, it is tricky.  Fine distinctions are in order, and a better approach might be to rewrite the substantive drug offense law rather than tinker with sentencing.  But this is a time when we should be strengthening, not softening, gun crime sentences and sentences for offenses that will help us fight dangerous criminal organizations (which tend to traffic in drugs and guns).  Of course, I hope that we can enact some sensible legislation to deter or prevent much of the day-to-day gun crime that we experience in this country, a substantial amount of which is connected to criminal organizations.  But where we cannot do so (and we cannot prevent it all), we should be prepared to aggressively prosecute and punish it.

I also continue to believe that the push to curb “mass incarceration” cannot be sustained if its focus is solely upon “low-level” drug offenders.  And for those who are simultaneously pushing the mass incarceration/sentencing reform narrative as well as the narrative about strengthening gun laws, those narratives may well be on a collision course – unless we are prepared to properly make, and commit ourselves to, some critical distinctions among offenses.

Unfortunately, sentencing reform – rhetorically, at least – has become a one-way ratchet.  I say again what I have said before: reducing some sentences, or eliminating some mandatories, is probably appropriate; but sentencing reform does not have to be exclusively about reducing sentences.  For some offenses, reform can move in the other direction, too.



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