Senate strikes compromise on criminal justice reform

SEPTEMBER 30, 2015

By Rachael Bade , Daniel Lippman and Sarah Wheaton– Politico.com

A bipartisan group of Senate leaders has reached a deal on criminal justice legislation that would allow well behaved prisoners to earn time off their sentences and effectively reduce long criticized mandatory minimums for non-violent drug offenders.

Senate Judiciary Chairman Chuck Grassley (R-Iowa), Republican Whip John Cornyn (R-Texas), Minority Whip Dick Durbin (D-Ill.), Sheldon Whitehouse (D-R.I), Mike Lee (R-Utah), Lindsey Graham (R-S.C.), Chuck Schumer (D-N.Y) and Cory Booker (D-N.J.) have agreed to a package aimed at making the criminal justice system fairer, particularly for African Americans, following the Baltimore and Ferguson riots.

The deal is a major boost for an issue that President Barack Obama hopes to make a central part of his legacy.

In the deal — a work-in-progress since this spring — lawmakers tried to strike a balance between critics who want to do away with mandatory minimum sentences altogether, including 2016 presidential contender Rand Paul (R-Ky,) and top Judiciary Democrat Patrick Leahy (D-Vt.), and Republicans like Grassley and Cornyn who have traditionally been wary of such proposals.

The bill includes significant concessions for both left and right, according to a source close to the negotiations. The bill would significantly reduce federal mandatory minimum sentences for nonviolent, repeat drug offenders and limit circumstances under which someone might face a “three strikes, you’re out” life sentence. It also would give judges more discretion to override a mandatory minimum. The bill would apply the Fair Sentencing Act of 2010 – which drastically reduced the sentencing disparity between crack and powder cocaine – retroactively.

But some of the sentencing reforms don’t go as far as Democrats had hoped, and the bill would create more categories of crimes that come with a mandatory minimum, like interstate domestic violence charges.

It’s also missing a key element that conservatives had pushed for – mens rea reform. Sen. Orrin Hatch (R-Utah) has been a top champion of changes to the rules surrounding criminal intent, arguing that overcriminalization leads many honest citizens to get tripped up by laws they didn’t know they were breaking.

“I question whether a sentencing reform package that does not include mens rea reform would be worth it,” Hatch said on the Senate floor earlier this month.

However, Mark Holden, general counsel for Koch Industries and a top conservative voice for criminal justice reform, said on Wednesday that while he’d ultimately like to see Hatch’s hoped for changes, “I’m assuming that there’s enough really good stuff that everybody can coalesce around.”

The bill would also limit solitary confinement for juveniles in federal facilities.

Coincidentally, news of the deal came as criminal justice reform advocates gathered at the Capitol on Wednesday to call for an end to putting kids in solitary confinement, kicking off a petition campaign sponsored by the television network FUSION.

Booker, appearing at the event, confirmed that the deal had been reached but declined to offer specifics ahead of the official rollout on Thursday.

His aides, Booker said “were up till like midnight last night on the negotiations,” adding that he’d shaken hands with some of the other senators involved on the Senate floor on Wednesday morning.

“It is good progress in the right direction,” said Booker. “I have been involved in these negotiations. My bar is high, and there’s enough in here, even related to kids, if the bill stays how it is, that will get my full-throated support.”

The compromise, according to the source close to the talks, does include the main components of the Cornyn-Whitehouse CORRECTIONS Act on prison reform, which aims to reduce overcrowding and cut recidivism rates by letting low-risk prisoners earn reduced sentences and improving programs that prepare inmates for life after prison.

Lawmakers are expected to announce the deal on Thursday, a week after Pope Francis called on Congress to improve prison rehabilitation programs, drawing attention to the issue by visiting inmates in Philadelphia.

The high profiles of the lawmakers involved suggests the bill will get a full Senate vote — perhaps by the year’s end, as Cornyn had suggested previously. But finding time to debate and vote on the measure will be hard, given the jam-packed fall schedule, where lawmakers must act on government funding, the debt ceiling and the highway bill.

The head of the U.S. Justice Action Network, whose members span the spectrum from FreedomWorks to the Center for American Progress, said her coalition’s principals planned to lobby aggressively for the measure’s passage.

“The tone surrounding the package has changed, and it’s moved from skepticism now to a hopeful tone,” said Holly Harris, the group’s executive director. “I think this bill’s going to be more significant than initially thought.”

The White House, which has also been involved in the negotiations, welcomed the news.

“We look forward to continuing to work with members of the House and the Senate to ensure that meaningful legislation passes that makes our criminal justice system more cost-effective, fairer, and smarter while enhancing public safety and the ability of law enforcement to enforce the law and to keep our communities safe,” said White House spokesman Frank Benenati. “The Administration hopes that Congress will move quickly so the President can sign such a bill into law this year.”

Obama made criminal justice reform a central theme of his summer, telling prisoners that he personally could have easily ended up in their shoes. A VICE documentary featuring the president meeting inmates at a federal lockup in Oklahoma aired last week on HBO.

While much of the conversation following the deaths of unarmed black men at the hands of police, centered on law enforcement practices, the killings also put a spotlight on the issue of sentencing. Mandatory minimums, particularly those surrounding drug violations, predominantly affect African Americans. According to an oft-cited statistic, the United States holds 25 percent of the world’s prisoners, despite representing only five percent of the globe’s total population.

Minimums came to prominence in the 1980s and 1990s during the nation’s tough-on-crime phase. And although supporters argue that crime dropped over that time period, prison populations have ballooned, and with them the price tag of running facilities.