More on Sentencing and Criminal Justice "Reform"

By Dan Cadman on April 24, 2016

Twice before (here and here) I've blogged about the highly questionable aspects of parallel sentencing reform bills that are before both houses of Congress. They apparently aren't gaining quite the traction that they need to pass despite the support of heavyweights among both senators and representatives and — a more dubious thing by far, where garnering added congressional votes is concerned — the enthusiastic backing of the president, since this is on his -uckit list.

So those legislative busy beavers have been laboring away, logrolling and back-scratching and whatever else they do to line up the votes, including even tossing in a few amendments here and there to get the deal done. One of them is to rename the bill, which is now called the "Full Employment for Criminal Defense Attorneys Act". Okay, I admit I made that up. But it might as well be true. (Another nickname that's been applied to the bill is the Criminal Alien Prison Release Act of 2016.)

The language in the provisions is becoming so arcane, so difficult to understand, and so vague in who is encompassed that it will be an open invitation to prisoners to institute litigation if they are denied the happy benefits of being released early under the new rules. Imagine all of the pro bono, and handwritten-on-toilet-paper pro se motions from prisoners that the courts will soon be swamped with!

Perhaps the hard-to-comprehend density of the language is deliberate; intended to obfuscate exactly how liberal this bill is in its treatment of individuals, unambiguously including lots of aliens, who were apprehended and convicted for crimes such as possession of weapons while in possession of drugs. This is because the phrase "serious violent felonies" (which disqualifies inmates from sentence reduction) is not defined and is open to significant debate. The National Association of Assistant United States Attorneys asserts in "The Dangerous Myths of Drug Sentencing 'Reform'" that:

[T]his will likely create endless litigation throughout the federal courts over vagueness in the use of the term 'serious violent felonies' to describe those crimes excluded from retroactive sentencing reductions and early release. Significant variations in judicial interpretations of the term will likely result, echoing the same injustices that existed in the 1980's that caused Congress to respond with more determinative measures like mandatory minimums. Moreover, the Supreme Court's multiple decisions over the past several years, in cases like Johnson, questioning Congressional drafting of repeat offender statutes creates added risk. Beyond the legal uncertainty, there also is risk to public safety posed by the revised [bill], given already high recidivism rates associated with current drug trafficking laws.


As I said, these bills are a defense attorney's dream: perpetual employment through endless litigation.

Another interesting facet of the legislation as proposed is that it is three-sided: The sentencing reductions can be instituted by the government, by a judge, or on motion of the prisoners themselves. Sounds a little over-broad to me, but hey, maybe this is some new theory of corrections that's meant to be the equivalent to the "360-degree ratings" used by some businesses. For convicts, this is great stuff! By seeking sentencing reduction, you get to rate yourself and decide just exactly how much incarceration is enough.

As to the amendments, one might think that they include some toughening-up to draw in the skeptics who have not yet signed onto the madness. Not necessarily so. For instance, one of them further expands the reach of people entitled to have their sentences reduced retroactively, as well as in the future, to include individuals convicted under 46 U.S.C. §§ 70503 and 70506 ("Maritime Drug Law Enforcement Act" or MDLEA) and 21 U.S.C. §§ 960 and 963 ("Controlled Substances Import Export Act"). Note that the MDLEA prohibits the manufacture, distribution, or possession of controlled substances on board maritime vessels. Seaborne smuggling is responsible for tons of toxic narcotics entering our country and is one of the scourges our federal law enforcement authorities, including the Coast Guard, DEA, and Customs and Border Protection, struggle to contain.

International cartels have so much money that they can afford to buy "disposable" ships for the sole purpose of moving their narcotics. When seized, they are simply written off as part of the cost of doing business, and cheap at the price. They even have the funds to purchase highly innovative submarines used for that purpose as well.

Reading that the mostly alien smuggling professionals who man such vessels will now be entitled to reduced sentences, one might reasonably wonder whether Colombian, Mexican, and other transnational gangs have gotten smart and enlisted the help of slick K Street lobbyists to have their way with Congress.