The (Still) Treacherous Politics of Criminal-Justice Reform

Political attitudes on crime and punishment have shifted, but that might not save legislation this year.

Sens. Mike Lee (right) and Chuck Grassley support criminal-justice-reform legislation.
AP Photo/J. Scott Applewhite
Ben Geman
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Ben Geman
Feb. 3, 2016, 8:01 p.m.

On the same day that New Hamp­shire primary voters head to the polls, GOP back­ers of crim­in­al-justice-re­form le­gis­la­tion will make their latest ef­fort in Wash­ing­ton to win trac­tion in a thorny elec­tion year.

Sens. Chuck Grass­ley and Mike Lee will host a Cap­it­ol Hill for­um Tues­day, fea­tur­ing former At­tor­ney Gen­er­al Mi­chael Muka­sey and oth­er cur­rent and former law-en­force­ment of­fi­cials, to pro­mote bi­par­tis­an le­gis­la­tion to over­haul sen­ten­cing and pris­on policies. For now, hold­ing for­ums may be the most they can do, as com­pet­ing polit­ic­al pri­or­it­ies among dif­fer­ent GOP groups have slowed pro­gress on one of the few policy is­sues that ac­tu­ally looked ripe for com­prom­ise in 2016.

The for­um is part of an ef­fort by Re­pub­lic­an sup­port­ers of the bill to re­gain mo­mentum, even as Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell hasn’t com­mit­ted to hav­ing a floor de­bate.

Lee told Na­tion­al Journ­al this week that he’s “talk­ing con­stantly” with col­leagues to ad­vance the bill. It would scale back tough man­dat­ory-min­im­um sen­tences for cer­tain non­vi­ol­ent drug of­fenses, and en­able re­duced pris­on terms for some in­mates who take part in pro­grams to cut their risk of re­cidiv­ism.

The same day that next week’s for­um was an­nounced, Sen. Rand Paul, who broke with the GOP pack by em­phas­iz­ing crim­in­al-justice is­sues on the stump, aban­doned his flounder­ing pres­id­en­tial bid. It’s il­lus­trat­ive of how the re­form ef­fort has a long way to go, des­pite some big polit­ic­al gains.

If ad­voc­ates of over­haul­ing the na­tion’s sen­ten­cing and pris­on policies were in the fight for sym­bol­ic vic­tor­ies, it would be time for a cel­eb­ra­tion.

A ma­jor bi­par­tis­an bill cleared the Sen­ate Ju­di­ciary Com­mit­tee in the fall, led in part by the second-rank­ing Re­pub­lic­an in the up­per cham­ber. Across Cap­it­ol Hill, House Speak­er Paul Ry­an says he wants ac­tion, while right-fa­cing groups, in­clud­ing Grover Nor­quist’s Amer­ic­ans for Tax Re­form and the Koch broth­ers, are try­ing to make the case to con­ser­vat­ive law­makers. The is­sue is get­ting lots of at­ten­tion from the Demo­crat­ic White House hope­fuls.

It’s a far cry from the 1990s, when crime rates were high­er and Pres­id­ent Clin­ton signed tough-on-crime le­gis­la­tion that he has since ex­pressed mis­giv­ings about.

“The polit­ics are very dif­fer­ent just be­cause the crime rate has dropped so much,” said polit­ics and gov­ernance ex­pert Elaine Kamar­ck, a seni­or fel­low at the Brook­ings In­sti­tu­tion who served in the Clin­ton White House.

“The pres­sures that both politi­cians and voters were feel­ing in the Clin­ton ad­min­is­tra­tion have just gone away,” she said.

Polling con­duc­ted for the Amer­ic­an Civil Liber­ties Uni­on by the Ben­en­son Strategy Group last year found: “In a sharp shift away from the 1980s and 1990s, when in­car­cer­a­tion was seen as a tool to re­duce crime, voters now be­lieve by two-to-one that re­du­cing the pris­on pop­u­la­tion will make com­munit­ies safer by fa­cil­it­at­ing more in­vest­ments in crime pre­ven­tion and re­hab­il­it­a­tion strategies.”

Pew Re­search Cen­ter polling con­duc­ted in early 2014 showed much high­er sup­port for states mov­ing away from man­dat­ory sen­tences for non­vi­ol­ent drug crimes com­pared to the same sur­vey 13 years earli­er. However, Re­pub­lic­ans polled were split al­most down the middle on the ques­tion.

An­oth­er poll­ster agrees that there’s a GOP di­vide. “Re­pub­lic­an voters are usu­ally pretty tough on crime, but there is also a num­ber of Re­pub­lic­an voters who say yes, this is a prob­lem and needs to get fixed,” said Re­pub­lic­an poll­ster Glen Bol­ger.

He ad­ded: “It is not a huge, high-pro­file is­sue among Re­pub­lic­an primary voters. It is not a vote de­term­in­ant at this point in time. … It is hard, if you are a Re­pub­lic­an can­did­ate for pres­id­ent, to say, ‘I want to put a lot of my cred­ib­il­ity on the line for this is­sue.’”

In­deed, Pew’s polling sim­il­arly sug­gests that it’s not a top-tier is­sue, es­pe­cially for GOP voters.

Pew’s an­nu­al rank­ing of pub­lic pri­or­it­ies re­leased Jan. 22 in­cluded crim­in­al-justice re­form as a sep­ar­ate cat­egory this year. It finds that 44 per­cent be­lieve it should be a top pri­or­ity for the White House and Con­gress (com­pared to 75 per­cent for the eco­nomy and ter­ror­ism, and 66 per­cent for edu­ca­tion and jobs, among oth­er is­sues per­form­ing bet­ter).

“Nearly half of Demo­crats (49 per­cent) view re­form­ing the justice sys­tem as a top pri­or­ity, com­pared with 32 per­cent of Re­pub­lic­ans,” Pew states.

On the stump, Hil­lary Clin­ton and Bernie Sanders have dis­cussed the top­ic far more than the GOP hope­fuls.

“The polit­ics of this are very im­port­ant with­in the Demo­crat­ic Party. I don’t think they are nearly as im­port­ant with­in the Re­pub­lic­an Party,” Kamar­ck said. “With­in the Demo­crat­ic Party it is very im­port­ant in the Afric­an-Amer­ic­an com­munity, be­cause they have suffered dis­pro­por­tion­ately from the harsh sen­ten­cing and the man­dat­ory-sen­ten­cing rules.”

Sen. Ted Cruz, who won the Iowa caucuses this week, op­poses the Sen­ate bill, ar­guing that it would put vi­ol­ent and dan­ger­ous crim­in­als back on the streets, a char­ac­ter­iz­a­tion that spon­sors have worked to re­but. Cruz’s ob­jec­tions in­clude op­pos­i­tion to pro­vi­sions that en­able short­er sen­tences for cer­tain gun-pos­ses­sion of­fenses.

Sen­at­ors in­clud­ing Jeff Ses­sions and Tom Cot­ton are also work­ing against the bill, while back­ers in­clude Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley and John Cornyn, the ma­jor­ity whip.

Mc­Con­nell said this week that Cruz’s po­s­i­tion was not af­fect­ing the bill’s fate, not­ing, “The pres­id­en­tial can­did­ates are not go­ing to dic­tate the agenda in the Sen­ate.” He said there’s been no de­cision about wheth­er the bill will come to the floor.

“What I’ve said to my con­fer­ence is we all need to come up to speed on this. So what we’re go­ing to do in the com­ing days and weeks is to get every­body in our con­fer­ence fully en­gaged and up to speed on the vari­ous as­pects of it,” Mc­Con­nell told re­port­ers in the Cap­it­ol on Tues­day.

Sev­er­al GOP sen­at­ors fa­cing tough reelec­tion battles, such as Ron John­son and Kelly Ayotte, have not taken a po­s­i­tion on the bill.

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