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
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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