This Is How Justice Reform Can Actually Happen This Year

Chuck Grassley’s power will change the dynamics of sentencing reform. But there’s still a bipartisan way forward in the Senate.

New committee chairman Senator Chuck Grassley takes his seat for a meeting of the Senate Judiciary Committee on Capitol Hill January 22, 2015 in Washington, DC. 
National Journal
Feb. 2, 2015, 3 p.m.

The rise of Sen. Chuck Grass­ley to the head of the Ju­di­ciary Com­mit­tee has made a lot crim­in­al-justice re­form ad­voc­ates nervous.

Four months ago, be­fore Re­pub­lic­ans took back the Sen­ate, it ap­peared that re­du­cing man­dat­ory min­im­ums had over­come cru­cial hurdles. The Smarter Sen­ten­cing Act, which would re­duce man­dat­ory min­im­ums for some drug of­fend­ers, passed out of com­mit­tee in Janu­ary 2014 and at­trac­ted a roster of high-pro­file back­ers, from former GOP vice pres­id­en­tial nom­in­ee Paul Ry­an to pro­gress­ive lead­er Eliza­beth War­ren of Mas­sachu­setts. Po­ten­tial 2016 pres­id­en­tial can­did­ates such as Sens. Rand Paul and Ted Cruz had de­cried man­dat­ory min­im­ums. Even Pres­id­ent Obama and the Koch broth­ers, who have spent mil­lions against him, agreed the sen­ten­cing re­quire­ments had to be re­duced.

But, like many con­ser­vat­ives who came to power in an era when Re­pub­lic­ans branded them­selves as the “tough on crime” party, Grass­ley has made it clear that he sees the steady re­duc­tion in vi­ol­ent crime in the United States over the last 30 years as a dir­ect re­flec­tion of more-ef­fect­ive poli­cing strategies. And he be­lieves that man­dat­ory min­im­um laws that en­sure crim­in­als stay locked up have been key to that pro­gress.

Grass­ley’s pos­ture to­ward man­dat­ory min­im­ums has giv­en some ad­voc­ates pause.

“I do think we can work with him,” Sen. Jeff Flake, R-Ar­iz., a mem­ber of the Ju­di­ciary Com­mit­tee, said of Grass­ley. “He knows some changes need to be made, but it does in­flu­ence how far you can go if the chair­man stands op­posed.”

In a Demo­crat­ic-con­trolled Con­gress, many saw a clear path for re­du­cing man­dat­ory min­im­ums. A hand­ful of vo­cal GOP sup­port­ers have con­tin­ued to say justice re­form should re­main a key pri­or­ity in the new Sen­ate. But with Grass­ley in charge, the path for­ward for crim­in­al-justice re­form will likely look very dif­fer­ent.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas in­tro­duces a rare bill that could ac­tu­ally get through Con­gress and be signed by the pres­id­ent.

That le­gis­la­tion would be sim­il­ar to what was known as the Re­cidiv­ism Re­duc­tion and Pub­lic Safety Act in the 113th Con­gress. That bill was also bi­par­tis­an but far less con­ten­tious than the Smarter Sen­ten­cing Act among the Re­pub­lic­an rank-and-file. Even Grass­ley voted it out of com­mit­tee last year, where it passed 15 to 2. Many of the same mem­bers are still sit­ting on the com­mit­tee with a few GOP ad­di­tions, in­clud­ing Thom Tillis of North Car­o­lina and Dav­id Per­due of Geor­gia.

The bill next week will fo­cus on trans­ition­ing pris­on­ers back in­to the com­munity after they have served their time. It re­quires that each in­mate un­der­go a risk as­sess­ment to eval­u­ate his or her propensity for re­cidiv­ism. Then it al­lows those deemed me­di­um- and low-risk to earn cred­its for par­ti­cip­at­ing in pro­grams such as job train­ing or sub­stance ab­use coun­sel­ing. Cer­tain well-be­haved and low-risk of­fend­ers could then use those cred­its to serve out the fi­nal days of their sen­tences un­der some kind of com­munity su­per­vi­sion.

Grass­ley’s of­fice in­sists that it is early, and no de­cisions have been made on what bills will make it through the com­mit­tee. There is an at­tor­ney gen­er­al to con­firm and more on the com­mit­tee’s dock­et that comes be­fore dis­cus­sions about far-reach­ing justice re­form. But, shuff­ling down the hall­ways of the Dirk­sen Sen­ate Of­fice Build­ing in Janu­ary, Grass­ley rattled off his top three goals for the com­mit­tee. “Ju­ven­ile-justice re­form, pat­ent trolling, and … pris­on re­form,” he said. “There are some things where there is a pretty good shot of get­ting some bi­par­tis­an agree­ment.”

And, if the Sen­ate GOP’s No. 2 in­tro­duces the bill, it will make it harder for Grass­ley to ig­nore.

That bill could be the open­ing ad­voc­ates are look­ing for: In a more open Sen­ate where Ma­jor­ity Lead­er Mitch Mc­Con­nell al­lows hosts of amend­ments, it’s likely that man­dat­ory min­im­ums wouldn’t be shut out of the pro­cess, re­gard­less of Grass­ley’s po­s­i­tion. Even if man­dat­ory min­im­ums, a piece of the le­gis­la­tion that was once hailed as a bi­par­tis­an bright spot in an oth­er­wise ob­stin­ate Con­gress, looks like it may be mov­ing to the back burn­er, it still has a path for­ward, too.

“I think the pris­on re­form bill has the biggest con­sensus of bi­par­tis­an sup­port, so that ought to be the base bill. But oth­er people have ideas, and they are en­titled to of­fer them,” Cornyn said, open­ing up the po­ten­tial for changes to man­dat­ory min­im­ums or oth­er, re­lated pro­vi­sions be­ing at­tached as amend­ments.

Grass­ley has said that he is will­ing to have a con­ver­sa­tion about man­dat­ory min­im­ums but that he has “a little dif­fer­ent view than some oth­er mem­bers have.

“The im­port­a­tion of heroin and co­caine isn’t a ma­jor prob­lem and ought to have high man­dat­ory min­im­ums, with the vi­ol­ence that comes from it?” Grass­ley asked. “They want to re­duce that. I don’t be­lieve in that.”

His own vot­ing re­cord in­dic­ates he is more amen­able to Cornyn’s bill, which was co­sponsored in the last Con­gress by Demo­crat Shel­don White­house. In fact, mem­bers say Grass­ley is look­ing for­ward to work­ing on it.

“Sen­at­or Grass­ley has said he’d like to see it re­l­at­ively soon, and so has Sen­at­or Cornyn,” White­house said. “Does that mean next week? I doubt it. Does that mean be­fore the Au­gust re­cess? I very much think so.”

Grass­ley has taken the helm of the Ju­di­ciary Com­mit­tee just as the polit­ics and at­ti­tudes sur­round­ing crim­in­al justice have shif­ted. The fal­lout from the 1988 pres­id­en­tial elec­tion, where the es­cape of in­mate Wil­lie Hor­ton helped seal the vic­tory for George H.W. Bush, is squarely in the rear­view mir­ror, and even older-guard Re­pub­lic­ans have changed their tune on the is­sue.

“I was one of those who early on, be­cause judges were be­ing too easy on some of these harsh crim­in­als, did these man­dat­ory sen­tences, but I think it’s gone way too far,” said Sen. Or­rin Hatch, R-Utah.

Today, a new gen­er­a­tion of Re­pub­lic­ans sees re­du­cing man­dat­ory min­im­ums for drug of­fenses and help­ing as­sim­il­ate former pris­on­ers back in­to so­ci­ety as a way to cut costs and make in­roads with minor­ity voters.

“We don’t tell any­one they should do this for polit­ic­al reas­ons, but if good policy is good polit­ics, then so be it,” said Marc Lev­in, the policy dir­ect­or for Right on Crime, a con­ser­vat­ive group push­ing for crim­in­al-justice re­form le­gis­la­tion.

For budget-slash­ing Re­pub­lic­ans, there is a prac­tic­al ur­gency for re­form. The fed­er­al pris­on pop­u­la­tion has bal­looned from 25,000 in­mates in 1980 to 219,000 in 2013. But without man­dat­ory min­im­ums be­ing ad­dressed, some ad­voc­ates worry that justice re­form may not make a sub­stan­tial im­pact.

They warn that passing a bill aimed at re­du­cing re­cidiv­ism without ac­com­pa­ny­ing le­gis­la­tion to re­duce man­dat­ory min­im­ums won’t do enough to cut pris­on costs or over­crowding. Today, drug of­fend­ers rep­res­ent 42 per­cent of the pop­u­la­tion in fed­er­al pris­ons, and every­one from the Con­gres­sion­al Re­search Ser­vice to the Urb­an In­sti­tute be­lieves that man­dat­ory min­im­ums are partly to blame.

“A pris­on-re­form bill that doesn’t fix man­dat­ory-min­im­um sen­tences isn’t fix­ing the real prob­lem. We spend bil­lions of dol­lars to lock up thou­sands of non­vi­ol­ent drug of­fend­ers for dec­ades be­cause of out­dated man­dat­ory-min­im­um sen­ten­cing laws that only Con­gress can change,” said Molly Gill, a lob­by­ist at Fam­il­ies Against Man­dat­ory Min­im­ums. “Giv­ing a few pris­on­ers 10 days off their sen­tences here and there is not go­ing to downs­ize pris­on pop­u­la­tions fast enough or get pris­on costs un­der con­trol. Sen­ten­cing re­form will.”

But oth­er ad­voc­ates say that any step for­ward could help build mo­mentum for broad­er ac­tion down the road.

“The Cornyn bill wouldn’t be something that was just win­dow dress­ing,” Lev­in said. “It would have a sig­ni­fic­ant im­pact. We don’t ex­pect to get everything in one ses­sion.”

What ad­voc­ates may find is that Grass­ley’s will­ing­ness to work on crim­in­al-justice re­form may be more ex­tens­ive than first ex­pec­ted.

“Don’t use the word leg­acy,” Grass­ley said. “I am not the chair­man of a com­mit­tee to have a leg­acy. I am chair­man of a com­mit­tee to get things done.”

What We're Following See More »
Trump Directs DoD to Launch Space Force
3 hours ago

"President Donald Trump signed a directive on Tuesday that ordered the Department of Defense create a Space Force as a sixth military branch. Known as Space Policy Directive 4 (SPD-4), the directive orders the Pentagon draft legislation for Congress that would create the Space Force as a part of the U.S. Air Force. This would establish the first military branch in 72 years. The Air Force is the nation's youngest branch and was added shortly after World War II."

Trump Tried to Put Ally in Charge of Investigation Targeting Him
3 hours ago

"As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Mr. Trump called Matthew G. Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call."

Trump Appointees Promoted Saudi Arabia Nuclear Sales Despite NSC Objections
9 hours ago

"Several current and former Trump administration appointees promoted sales of nuclear power plants to Saudi Arabia despite repeated objections from members of the National Security Council and other senior White House officials, according to a new report from congressional Democrats. The officials who objected included White House lawyers and H.R. McMaster, then the chief of the National Security Council. They called for a halt in the nuclear sales discussions in 2017, citing potential conflicts of interest, national security risks and legal hurdles."

Trump Will Nominate Jeffrey Byard to Lead FEMA
10 hours ago

"President Donald Trump announced Friday night that he would nominate Jeffrey Byard to head the Federal Emergency Management Agency, after FEMA head Brock Long abruptly resigned earlier this week. Currently FEMA's associate Administrator for Response and Recovery, Byard is the agency's "senior-most executive over disaster response, recovery, logistics, and field operations," according to a White House statement. Before joining FEMA in September 2017, he served in multiple positions in the Alabama Emergency Management Agency, including as executive operations officer."

Bernie Sanders Declares Bid
13 hours ago

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.