Holder proposed both executive and legislative action. The executive changes concern instructions to prosecutors on how to write charges without setting in motion the mandatory minimum sentences. As for legislative changes, Holder referenced a bill, sponsored by Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul, that would allow federal judges more say over whether mandatory minimum sentences are doled out. The administration appears ready to try to work with Congress to build on this proposal.
The possibility of legislative change, backed by bipartisan majorities, is not as far fetched as you might imagine. As Ed Kilgore comments:
Conservative reaction to Holder’s speech will be extraordinarily interesting. Long before Rand Paul drew national attention to his own support for sentencing reform, there was a quiet movement slowly but surely developing on the Right (which David Dagan and Steven Teles wrote about in the November/December 2012 issue of the Washington Monthly) in favor of calling off the madness of mandatory minimums. Just as importantly, this trend was being fed by various tributaries of the conservative stream, not just libertarians but conservative evangelicals and budget-conscious fiscal hawks. Just last week, in fact, the American Legislative Exchange Council, which probably contributed more to the spread of mandatory minimum legislation in the states than just about any other single source, reversed its position and endorsed sentencing reform.So Holder may be pushing on an unlocked door. Still, a whole generation of pols — mostly Republicans, to be sure, but also many Democrats trying to prove themselves as “tough on crime” — have prospered politically from the “Three Strikes” era. And the high visibility of those people in the ranks of non-violent drug offenders may give emotional pause to conservatives tempted by the massive evidence of the failure of Lock ‘Em Up and Throw Away the Key policies to admit it’s been a tragic mistake. This could be one of those moments when a rare bipartisan breakthrough happens, or it could get complicated and gridlocked.
Along these lines, you should watch for the reaction in particular from Republican Senators on the Judiciary Committee. For instance, Senator Jeff Sessions previously worked with Durbin on a compromise proposal that reduced the disparity between the amounts of crack and powdered cocaine, which had disproportionately impacted blacks. Sessions has yet to comment on today’s announcement, but aides to Senators on both sides are looking to the Alabama Senator to get a sense of whether the new push can move out of Judiciary. Another Senator on Judiciary worth watching is Orrin Hatch, who, like Lee (a co-sponsor of the reform) is from Utah. And some Dems believe John Cornyn, who has expressed interest in this area, could be gettable.
This is one of those issues where movement once seemed unthinkable. As Kilgore notes, for the longest time, few lawmakers would risk being labeled as “soft on crime.” But this is an issue around which Dems concerned about racial justice, and conservative libertarians (such as Senator Paul) who share race-based concerns in their better moments, and conservatives who see the issue more through the prism of their opposition to government overreach and “one size fits all” solutions, should theoretically be able to find common ground. All of this, combined with the sense that the “soft on crime” attacks, for a variety of reasons, no longer have anywhere near the cultural potency or political relevance they once did suggests this may now be an area where compromise is possible.