How could and will this election impact federal sentencing policy?
I have previously blogged here and here on some state sentencing issues that have arisen, and some state sentencing proposals that are on the ballot, this election season. Now my thoughts are turning to how the mid-term election might impact federal sentencing policy.
The current betting line predicts that Democrats are likely to be taking over the House, but suggests the Senate is likely to stay (barely) in the hands of Republicans. Whatever the exact outcome, I think any shifts in federal sentencing policy will be subtle, but still consequential. Here’s my rough take.
I think the prospect of a “topless” guidelines Booker fix is diminished if Democrats gain control of either or both houses of Congress. Also, I hope (but I am not confident) that there will be less emphasis on statutory mandatory minimums if Democrats are in power. Yet, because many Democrats still embrace the Clintonian strategy of being “tough on crime,” I doubt we will see any truly major shift in federal crime policy even if Democrats win both houses of Congress. Ultimately, what may matter most are the concerns and priorities of those persons who take over key leadership positions on judiciary committees.
UPDATE: Reflecting on these matters over my morning coffee led me to perhaps the two biggest federal sentencing questions that could follow the Democrats gaining more power in Congress:
- Would the chance of a fix to the 100:1 crack/powder ratio improve?
- Would federal judges and the US Sentencing Commission feel a bit freer to embrace Booker discretion based on the belief that Congress would be less likely to respond negatively to less harsh and rigid sentencing rules?