Divided GOP Ponders Way Forward on Criminal Justice Reform

Senate Majority Leader Mitch McConnell wants to slow down until more members learn about the bipartisan legislation.

AP Photo/J. Scott Applewhite
Ben Geman
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Ben Geman
Jan. 20, 2016, 8 p.m.

Re­pub­lic­an di­vi­sions over crim­in­al-justice re­form could im­per­il chances for a bi­par­tis­an deal to over­haul sen­ten­cing and pris­on-re­lease policies.

Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell on Wed­nes­day signaled a go-slow ap­proach on le­gis­la­tion to ease pris­on sen­tences for non­vi­ol­ent drug of­fenses, even as the in­tensi­fy­ing White House race could make com­prom­ise tough­er as the elec­tion draws closer.

“The mem­bers of the Ju­di­ciary Com­mit­tee have been deeply in­volved in that is­sue, [but] the rest of the con­fer­ence is not,” Mc­Con­nell told re­port­ers in the Cap­it­ol. He has not made any com­mit­ment to bring le­gis­la­tion be­fore the full Sen­ate.

“We are go­ing to be work­ing through the pro­cess of bring­ing every­body in the con­fer­ence up to speed on this very im­port­ant is­sue, and we are go­ing to do that be­fore any de­cision is made about floor time,” Mc­Con­nell said.

Dis­cus­sion of the bill dur­ing the Sen­ate GOP lunch Wed­nes­day high­lighted dis­agree­ments over the meas­ure, ac­cord­ing to one sen­at­or who asked not to be named be­cause he was dis­cuss­ing a closed-door meet­ing.

Sen. John Cornyn, the ma­jor­ity whip who is a key back­er of the bill, ac­know­ledged hurdles fa­cing the bill that passed the Ju­di­ciary Com­mit­tee last fall.

“I think [Mc­Con­nell] is bow­ing to real­ity, and the real­ity is that it was a 15-5 vote in the Sen­ate Ju­di­ciary Com­mit­tee. Five of our [GOP] mem­bers had re­ser­va­tions. We have been try­ing to work with them to try and ad­dress changes in the le­gis­la­tion that might get them on the bill,” Cornyn said.

“We have got some work to do to try to build that con­sensus. We are, I would say, more at the be­gin­ning of the pro­cess than the end of the pro­cess. But I have asked all of my col­leagues to work with us to try and find out where that con­sensus lies,” Cornyn said Wed­nes­day.

There’s likely more than enough sup­port in the full Sen­ate to ap­prove the bill. But the bill is non­ethe­less un­likely to come up un­less there’s broad sup­port among Re­pub­lic­ans. “You would want to have a big vote, and cer­tainly on our side we would want to have our guys by and large in fa­vor of where it was headed,” Sen. John Thune, a mem­ber of the GOP’s lead­er­ship team, told Na­tion­al Journ­al on Wed­nes­day.

The meas­ure also en­ables re­duced pris­on terms for people who take part in pro­grams to cut their risk of re­cidiv­ism, and over­hauls sen­ten­cing policy for gun-re­lated of­fenses in ways that ex­pand some pen­al­ties while trim­ming oth­ers.

The bill faces mul­tiple ob­jec­tions. Some Re­pub­lic­ans say it’s es­sen­tially soft on crime.

“I don’t think people have stud­ied it closely, and I think [when] they do, they are go­ing to be far more troubled than they think,” Sen. Jeff Ses­sions, who voted against the bill in the Ju­di­ciary Com­mit­tee, told re­port­ers in the Cap­it­ol on Wed­nes­day.

“We are at a point where we are see­ing smal­ler fed­er­al and state pris­on pop­u­la­tions and you are go­ing to see an in­crease in crime, an in­crease in vi­ol­ent crime; it is already be­gin­ning to oc­cur. We are also soften­ing our ap­proach to drugs, and you are go­ing to see more deaths from heroin, and more crime re­lated to drug ab­use,” Ses­sions said.

He and fel­low Re­pub­lic­ans Ted Cruz—who is a lead­ing GOP White House con­tender—Or­rin Hatch, Dav­id Per­due, and Dav­id Vit­ter op­posed the bill in com­mit­tee, while Cornyn and the oth­er com­mit­tee Re­pub­lic­ans joined Demo­crats in sup­port.

An­oth­er stum­bling block is a GOP-led push to add pro­vi­sions that would sub­stan­tially ex­pand the num­ber of crimes for which pro­sec­utors must show that de­fend­ants knew that their con­duct was il­leg­al.

The push led by Hatch to ex­pand “mens rea” (or “guilty mind”) re­quire­ments was the sub­ject of a hear­ing Wed­nes­day in the Ju­di­ciary Com­mit­tee that saw sup­port­ers of the bill ur­ging their GOP col­leagues not to let the mens rea is­sue take down the whole bill.

“In the com­ing weeks, we have an his­tor­ic op­por­tun­ity to pass le­gis­la­tion that will cor­rect some of the worst in­justices in our crim­in­al-justice sys­tem,” said Sen. Patrick Leahy, the top Demo­crat on the pan­el. “All of this pro­gress is now at risk be­cause some are de­mand­ing sweep­ing changes that would make it harder to hold cor­por­a­tions ac­count­able when they sell food that sick­ens con­sumers, en­dangers work­ers, or pois­ons our wa­ter sup­ply.”

Cornyn, while sup­port­ing changes to mens rea, said Wed­nes­day that he’s con­cerned about im­per­il­ing the bill that’s de­signed to ad­dress sen­ten­cing and pris­on re­form.

“I worry that if we be­gin to add ad­di­tion­al things to that le­gis­la­tion, it is go­ing to weigh it down to the point where we will not be able to pass any­thing this year,” Cornyn said at the hear­ing, cit­ing a “small win­dow of op­por­tun­ity.”

But it’s a sticky prob­lem be­cause while the Justice De­part­ment op­poses adding mens rea to the bill and key Demo­crats do as well, House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte has said that it’s a vi­tal part of the par­al­lel crim­in­al-justice re­form ef­fort in his cham­ber.

“I do be­lieve the House is go­ing to pass le­gis­la­tion that does in­clude some mens rea re­quire­ment,” Cornyn said, “and wheth­er or not the Sen­ate ver­sion has it in there, we are go­ing to have to deal with this is­sue at some point along the way any­way.”

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