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Why Are These Senators Undecided About Sentencing Reform?

Is this Gang of Fourteen still so afraid of the law enforcement lobby that they cannot restructure a sentencing regime that has proven, conclusively, that it does not work?

Published: June 23, 2014

The New York Times over the weekend published a house editorial titled “Sentencing Reform Runs Aground,” which noted, correctly, that this version of Congress has managed to suck the life out of two bipartisan reform measures that would help curb the ghastly costs of mass incarceration in America.

"Some members of Congress get it,” the Times declared. “On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona.” Some members of Congress get it, all right. But many others do not. What the Times did not do was list those members of Congress, and especially those Democratic members of the Senate, who have not yet mustered up the courage to declare their intentions toward the Smarter Sentencing Act, the keystone measure that would reduce mandatory minimum sentences for non-violent drug offenders.

Here is that list, compiled over the past few week from various sources:

Sen. Mark Pryor (Ark)

Sen. Jon Tester (MT)

Sen. John Walsh (MT)

Sen. Kay Hagan (NC)

Sen. Heidi Heitkamp (ND)

Sen. Jeanne Shaheen (NH)

Sen. Tim Johnson (SD)

Sen. Mark Warner (VA)

Sen. Joe Manchin (WV)

Almost all of these Democrats serve in Red States. But how does Sen. Mark Pryor (and his Republican colleague Sen. John Boozman, for that matter) justify an unwilling to embrace the Smarter Sentencing Act when his home state, run by Republican legislators, recently has embraced sentencing reform? How does Sen. Manchin justify his failure to endorse the bipartisan federal bill when new bipartisan sentencing reform in his home state of West Virginia has been such a success?

What’s Sen. Warner’s excuse in Virginia? Does he realize that on this issue he is to the right of Ken Cuccinelli, the rabidly conservative former attorney general of the Commonwealth, who just wrote an op-ed for The Washington Post titled “Less incarceration could lead to less crime.”?

In late April, Casey Given, a young conservative voice, offered this online perspective on sentencing reform at the American Conservative website:

However, with elections around the corner in November, it remains to be seen if Drug War rhetoric could scare incumbents up for reelection (particularly in the House) afraid of appearing “soft on crime.” The law enforcement lobby is already applying pressure on key legislators. These candidates should keep in mind one notable poll conducted by Families Against Mandatory Minimum that found “more than three-quarters of Americans (78 percent) feel the court, not Congress is best qualified to determine sentences.” Red states like Texas, Georgia, Missouri, and Oklahoma have also passed successful criminal justice reform without any repercussions to their conservative leadership.

Instead, Congressional Republicans should see sentencing reform as an opportunity to attract support from demographic groups outside their base. Like Gov. Jeb Bush and Sen. Marco Rubio’s outreach to the Hispanic community through calling for immigration reform, Sens. Paul and Lee’s push to reducing mandatory minimums has the potential to improve the GOP’s appeal to African-Americans.

I think that’s about right. While smart Republican lawmakers are moving to the left on sentencing to attract minority candidates, and while everyone agrees as a matter of fiscal governance the current level of mass incarceration cannot be sustained, the nine Democratic senators are unable to move at all for fear that they will be labeled as “soft on crime” if they reduce mass incarceration by reducing a limited number of mandatory minimum sentences.

But the question that ought to be asked, and soon before this opportunity to do something good is missed is: labeled by whom? The United States Sentencing Commission favors reform. So do the Justice Department and White House. Are these nine waffling, wavering, cowering Senate Democrats really afraid of having to say in a debate or on the campaign trail this fall, in response to a Republican rival, that they “agree with Ted Cruz and Rand Paul and Mike Lee” that this kind of sentencing reform makes sense? Are they afraid of standing up to the private prison lobby, which has a financial stake in ensuring that more people stay in prison for longer stretches? 

There also are, to be fair, five Republican senators who evidently are undecided about the Smarter Sentencing Act. They are: 

Sen. John Boozman (Ark) 

Sen. Kelly Ayotte (NH)

Sen. Pat Toomey (PA)

Sen. John Hoeven (ND)

Sen. Richard Burr (NC)

What exactly are these lawmakers afraid of? Are they planning in their next election campaign to portray Senators Cruz, Paul and Lee as “soft” on crime? Is Sen. Toomey unaware of the catastrophic conditions of mass incarceration in his own state? Are all of these legislators, the Republicans and the Democrats, still so afraid of the law enforcement lobby that they cannot restructure a sentencing regime that has proven, conclusively, that it does not work? The Smarter Sentencing Act is not a perfect piece of legislation. But on sentencing reform it’s the best piece of legislation to come down the road in Congress in quite some time. This Gang of Fourteen owes the American people an explanation, if not a vote, if they truly think otherwise.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Photo: AP)