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.”

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