It must hurt sometimes.  It’s not that the reforms will do much to change federal criminal law or practice, as they’re tepid at best. That won’t prevent the New York Times from throwing a party.

An opportunity to pass the most significant federal criminal justice reform in a generation may be slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well as a rare exhortation from President Obama during last month’s State of the Union address.

As an aside, the description of efforts as “tireless” is adorable, given that exhaustion has been a key description offered whenever someone complains about how hard it is to create their perfect world.

The bill, known as the Sentencing Reform and Corrections Act of 2015, is the product of years of negotiation over how best to roll back the imprisonment spree of the past four decades, a period in which the federal prison population grew from just under 25,000 to more than 195,000.

That there is a problem with incarceration nation isn’t the question. That this bill will “roll back the imprisonment spree” is, well, goofy. Not to suggest that the New York Times is prone to reform hyperbole, but this time it has a special horse in the race.  This time, the obstacle is that reform is being held hostage.

So what’s the problem? There are two, in fact — and both are serious threats to the bill’s chances of passage.

First, some congressional Republicans now say they will approve the bill only if it includes an across-the-board change in federal law that would make corporations and their executives harder to prosecute for environmental or financial crimes by imposing a new intent, or “mens rea,” standard on these crimes.

The inclusion of a default mens rea requirement would, in an alternate liberal universe, have been a no-brainer, a demand of the Gray Lady, a staple of any law that would put someone in prison, because strict liability for the tens of thousands of regulations that are enforced by criminal sanctions is an outrage, both to American jurisprudence and to a national choking under a tsunami of rules and regulations that no person could possibly know about.

But why does the Times hate this? Because they hate the Koch Brothers. And if the Koch Brothers are for something, it must be bad, and they must be against it.  At least that was their knee-jerk reaction, and now, with reform on the line, they realize that they completely screwed up.

Inclusion of a mens rea requirement will have negligible benefit for corporations, to the point of being a complete non-factor, but will be huge for small business and individuals caught up in the net of federal regulations. Big corporations have in-house counsel, compliance officers, all dedicated to knowing every federal regulation that applies to its business. The mens rea of “knowing” is a slam dunk. No prosecutor will ever break a sweat prosecuting a corporation he wants to prosecute.

But after Lee Fang at the Intercept screamed “but the Kochs!!!,” progressives went bonkers.  Now the Times is stuck with its position. Yup, that must hurt knowing that it’s your own knee-jerk hatred of the Koch Bros. that blocks your beloved reform.

Yet, there is another “hostage” according the Times, perhaps offered up as a sacrifice to remove some of the taint of their really stupid move in damning the mens rea law.

The other obstacle to the reform bill’s passage is old-fashioned scaremongering about the release of “violent criminals” into the streets. This is simply not true: Most of the provisions are focused on low-level, nonviolent drug offenders, who make up nearly half of all federal inmates.

Letting no opportunity go to waste, the Times aims at a presidential candidate to prove its point:

Senator Ted Cruz is leading this attack on the new bill. Yet just last year he called mandatory minimum drug sentences “unfair and ineffective,” and he sponsored reforms that would have reduced those sentences even more than the current bill does. Running for president on a hard-right platform has, apparently, changed his mind.

So Ted Cruz was right before, and now he’s just a pandering candidate trying to get elected, so that once he’s in office, he will return to the reasonable person the Times finds so agreeable and execute the duties of his office by taking care of business?  This could prove an interesting situation if Cruz gets elected, but I digress.

On this point, the Times is certainly correct, that there will be no mass exodus of violent criminals from prison as a result of Grassley-approved reform.  There won’t be any mass exodus of much of anybody, because the whole concept of the “low-level, nonviolent drug offenders” is a myth.

The Times editorial says this mythical group makes up “nearly half of all federal inmates.”  On what planet?  The perpetuation of this myth serves to make for a great political narrative, that nearly 100,000 people in federal custody are there for no good reason, and that this reform will right the terrible wrong of years of mindless tough on crime rhetoric.

The saving grace of this reform is that it will leave all those really bad dudes in prison. You know, the people who deserve to be there forever, to be sentenced to life plus cancer.  It makes for a great argument, a marketable myth for editorials such as this.  There is just one problem: it’s a lie.

It is simply not true that the growth of the prison population is mainly due to the sentencing of nonviolent drug offenders. About half of federal inmates are serving sentences for drug crimes, but the federal system only accounts for about two hundred thousand prisoners. In state prisons, which house about 1.3 million, only sixteen per cent of inmates are serving a sentence for nonviolent drug offenses, according to the latest Department of Justice statistics. About fifty-four per cent, by far the largest number, are there for violent crimes, and about nineteen per cent for property offenses, like burglary. 

And who has been pounding away on this myth, this lie, this hostage to reform?  It must really hurt sometimes to know that you’re the one who has created the very hostages about which you complain.  But not enough to admit you were wrong.