Project for Opportunity and Safety

Criminal Justice Reform: There’s Bipartisan Hope

Originally Posted on RealClear Politics
By: James Arkin

This final part of RealClearPolitics’ series on security issues in the 2016 campaign focuses on crime and personal safety. Part 1 was a national overview, Part 2 addressed the economy, Part 3 dealt with energy and the environment, Part 4 looked at cybersecurity.

In a tumultuous election year filled with negativity and vitriol, there’s little hope on Capitol Hill for passage of any meaningful legislation before November, and few pieces reflecting true bipartisan agreement. One exception, and the biggest hope for significant legislative achievement this year, is criminal justice reform.
For more than a year, there has been growing momentum on both sides of the aisle, inside and outside of Congress, for restructuring federal sentencing laws. The interlocking goals of would-be reformers are to reduce the prison population both for reasons of fairness and fiscal prudence, while also helping non-violent offenders re-enter society on a productive trajectory.

The United States has the second largest prison population in the world, according to the Institute for Criminal Policy Research. The Bureau for Justice Statistics shows that the federal prison population has risen by hundreds of thousands since the late 1970s, although the increase has slowed in recent years. Much of the prison population boom has been linked with the war on drugs and mandatory minimum sentences, which is the area of reform lawmakers are most actively working to change.

But time is running out for Congress to act this year, with a shortened calendar and long breaks during the summer and fall for campaigning. Still, there was confidence last week among supportive senators, who unveiled new changes to legislation intended to increase support among Republicans, that the measure could be finished this year.

Polls show a majority of the American public is open to a re-evaluation of sentencing laws, but it’s taken years for many lawmakers to join the coalition supporting the effort. It started with a partnership between conservative Sen. Mike Lee (R-Utah) and liberal Sen. Dick Durbin (D-Ill.), who sit at opposite ends of the ideological spectrum, but who came together on the issue a few months after Lee joined the Senate in 2011.

They introduced the first version Smarter Sentencing Act in 2013, which lowered some mandatory minimum sentences, among other reforms. The next task was to find additional support, particularly among Republicans. Lee, in an interview with RealClearPolitics, said that early in the process it was difficult to get his conservative colleagues to even focus on the issue.

“Honestly, a lot of the hard part is just getting people aware of why there’s a problem and why it needs to be fixed,” Lee said. “Once people understand the nature of the problem, [and] we can catch their attention long enough to help them understand what the problem is, they tend to be supportive.”

Support came slowly, but steadily, and the sponsors reintroduced the bill in early 2015 after Republicans had taken over the Senate majority.

A breakthrough came last spring when Iowa Sen. Chuck Grassley, the chairman of the Judiciary Committee, signaled a willingness to look at reforming parts of the justice system. Grassley had previously been a stalwart opponent of reforms, to the point of making Senate floor speeches against the proposals. But  he joined supporters in negotiating a new bipartisan approach. After months of careful work, they unveiled legislation that reduces some mandatory minimum sentences while giving judges more discretion over sentencing, and also creates new recidivism programs to allow some inmates to earn reduced sentences.

The Judiciary Committee took up the bill quickly and passed it on a bipartisan vote of 15-5 last October, but things stalled in the following months. Conservative senators, including Ted Cruz of Texas, Tom Cotton of Arkansas and Jeff Sessions of Alabama, expressed fears that the legislation could free violent criminals.

The sponsors began working to assuage such concerns while trying to gain sufficient backing to persuade Majority Leader Mitch McConnell to bring the bill to the floor. The momentum was slow, but there were trickles of new support. Finally, last week, Grassley and others introduced an amended version of the bill that strengthened provisions not allowing violent offenders to be eligible for early release – and that had 37 Senate co-sponsors. Grassley said he thought the time had come for conversations with McConnell about bringing the legislation to the floor for a vote.

Sen. John Cornyn, R-Texas, the second-ranking GOP senator, said: “I’m pleased with new support we’ve gotten, and I’m optimistic about our chances to get this forward.”

“We ensured that violent criminals and those who have been hardened by a life of crime will stay in prison while addressing the ballooning prison population that too often only perpetuates a life of crime,” Cornyn added.

While supporters did earn the backing of new Republicans last week – including Sens. Steve Daines of Montana, Thad Cochran of Mississippi and Dan Sullivan of Alaska – they didn’t convince some of the biggest detractors.

Sessions’ office termed the legislation “unsafe,” asserting in a written statement that it would “leave us with legislation that still would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates.”

In the House, the Judiciary Committee has already passed legislation creating similar changes to sentencing laws and dealing with recidivism rates, and the goal is to merge the legislation with the Senate’s version if both pass. Speaker Paul Ryan has spoken positively about the justice reform efforts, touting the bills working their way through committee and saying he hopes to be able to schedule floor time for them this year.

The odd pairings of conservative and liberal lawmakers on justice reform has been mirrored by far-left and far-right interest groups banding together to lobby for passage. These unorthodox allies include the liberal Center for American Progress and the conservative group FreedomWorks. Eight organizations, including those two along with the NAACP, ACLU and others joined the U.S. Justice Action Network to push for reform legislation.

The organizations’ leaders banded together last month for a day of lobbying on Capitol Hill, where they spoke with those already supporting the legislation and those wavering, and said they saw significant momentum toward passage. They seemed to take heart in the fact that this issue binds together groups more accustomed to opposing each other. Wade Henderson of the Leadership Conference on Civil and Human Rights, for example, pointed out that he and Adam Brandon of FreedomWorks are on opposite sides of the debate over whether the Senate should consider President Obama’s nominee to the Supreme Court. But they’re united on sentencing reform.

In the press conference they held after their day on Capitol Hill, some of the conservatives talked about the fiscal responsibility of reducing the prison population. Leaders of the liberal groups cited it as a civil rights issue. Timothy Head of the Faith & Freedom Coalition said it was impossible to separate the faith aspect of the reforms from the statutory and fiscal components.

“Some of these organizations care very much about taxpayer resources, and some of them care a lot about the disproportionate impact that the system has on communities of color,” Holly Harris, executive director of the Justice Action Network, told RCP in an interview. “Others really care about property rights, liberty issues, constitutional issues. They all have very, very different perspectives and they can all reach out to different constituencies.”

The backing of public opinion has also been crucial to pushing the issue forward. In a poll conducted last year on behalf of the ACLU, nearly seven in 10 voters – including 81 percent of Democrats and 54 percent of Republicans – said reducing prison populations was an important issue. In a February survey from Pew Charitable Trusts, nearly eight in 10 Americans – including majorities of Republicans and Democrats – supported getting rid of mandatory minimums for drug sentences and giving judges more discretion.

While lawmakers continue their push for sentencing reform, the White House has been doing what it can in the absence of new laws. In March, President Obama commuted the sentences of 61 individuals serving time for drug sentences, bringing his total commutations to 248. In a release accompanying the commutations, White House Counsel Neil Eggleston noted that clemency was a last resort for these individuals, and stressed the importance of broad justice reform to fix the problem on the front end rather than on the back end.

“So while we continue to work to resolve as many clemency applications as possible – and make no mistake, we are working hard at this – only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences,” Eggleston wrote.

Still, after years of work and months of careful negotiations, it’s not yet clear legislation will pass Congress this year. Both chambers will be in session for a limited time this summer and fall, and the appropriations process to fund the government could clog the legislative calendar. Still, proponents of the measure think it has broad enough support to easily pass both chambers, and insist Congress will take action sooner rather than later.

“This is the best chance in a generation to reform our federal drug sentencing laws,” Durbin said. “We cannot squander it.”

James Arkin is a congressional reporter for RealClearPolitics.