White-Collar Crime

The Senate Criminal Justice Reform Bill Is Here! (And It’s Disappointing)

Can Congress even capable of passing criminal justice reform? Let alone meaningful criminal justice reform?

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Today, a group of Senators will unveil a long anticipated bipartisan bill that’s meant to reform our criminal justice system. It’s been in the works a long time and it’s a big step that it’s finally seeing the light of day. Whether it will actually pass in a Congress where doing more mundane things like, say, funding the government, isn’t a given is tricky to say, but a step forward is a step forward.

The bill is co-sponsored by some heavy Republican hitters, among them Senators Grassley, Hatch, Cornyn and Graham. On the D side, Cory Booker, Dick Durbin, and Amy Schumer’s cousin also co-sponsored. It has some real things to be excited about, taking away some mandatory minimums, ending solitary confinement for kids, and making the Fair Sentencing Act — which chipped away at the crack/powder disparity in sentencing — retroactive.

But it also adds a bunch of new crimes that are subject to mandatory minimums because, apparently, Congress just reflexively does that when they’re writing any bill involving the criminal justice system.

These are fine ideas that really should be the law. Ending solitary confinement for kids should be as controversial as naming a post office after Abraham Lincoln, and it’s good to see that it’s happening (assuming the bill passes, which, again, see above).

But if you really want criminal justice reform that’s meaningful it’s hard to see this as much of a step. Politico billed this as a response to the riots in Ferguson and Baltimore. I’m not sure those folks were rioting over the retroactivity of the Fair Sentencing Act or a lack of discretion in federal mandatory minimum sentencing.

What’s frustrating about this bill is that it feels like criminal justice reform may be having its moment — and moments for movements are fleeting things — and if this is what comes out of it that’s more than a little sad.

I don’t mean to be naive enough to think that legislation won’t bring compromise — of course it will. But there was some great stuff that was talked about that mattered. For example, mens rea reform. This would be a really good thing for the white-collar bar. Right now, as I’ve written about here, folks can be convicted without proof that they knew that what they were doing was wrong. That’s not really how we think of criminal liability. Rolling that back — or at least making the law less sloppy — would be really really good.

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As Senator Hatch said,” I question whether a sentencing reform package that does not include mens rea reform would be worth it.”

The problems of overcriminalization and the way we prosecute and imprison people are complex. David Brooks had a great piece this week talking about that — and how the biggest component of overcriminalization is in prosecutor’s offices.

Right now, prosecutors have massive power to determine what the sentence will be through charging decisions. If you want to find any one actor that can make a sentence really long, it’s a prosecutor. And it seems the decisions prosecutors are making have dramatically increased sentences — almost single-handedly causing mass incarceration.

Brooks’ description of what to do with that — quoting Fordham Law professor John Pfaff — is really helpful in that it shows the real trouble in meaningful reform:

I asked Pfaff why prosecutors are more aggressive. He’s heard theories. Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office. Maybe the police are bringing stronger cases. Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box. He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

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At the federal level, what would reforming prosecutorial decision making look like? Sure, getting rid of mandatory minimums would help — and strengthening mens rea requirements would be good — but change beyond that would require either a change in the attitudes about the value of imprisonment at DOJ, where time in prison is the coin of the realm, or a large scale reworking of the role of the prosecutor in our criminal justice system.

And if it’s is hard to see how ending solitary confinement for kids will pass, fundamentally redoing our criminal justice system is really unlikely to happen.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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