The Story Behind a Breakthrough: How a Team of Senators Convinced Chuck Grassley on Justice Reform

A major bipartisan justice bill is being unveiled Thursday. Here’s how it came together, and all that stood in its way, over the last year.

Sen. Chuck Grassley listens to testimony during a Senate Judiciary Subcommittee on Civil Rights and Human Rights hearing on Capitol Hill in Washington, April 2013 .
Mark Wilson AFP/Getty
Lauren Fox
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Lauren Fox
Oct. 1, 2015, 9:51 a.m.

The Sen­ate has un­veiled a bi­par­tis­an plan, years in the mak­ing, to re­form the coun­try’s crim­in­al-justice re­form sys­tem.

The bi­par­tis­an bill an­nounced Thursday would give judges and courts more dis­cre­tion in dol­ing out sen­tences for some drug of­fend­ers and of­fers low-risk in­mates already in the sys­tem ac­cess to pro­grams that aim to pre­pare them for a life bey­ond their cells.  

“We are here today be­cause of a lot of hard work and a de­sire by a lot of us here to make the Sen­ate work,” Grass­ley said at a press con­fer­ence an­noun­cing the bill. “It is the biggest crim­in­al-justice re­form in a gen­er­a­tion.”

The le­gis­la­tion brought to­geth­er an un­likely team of law­makers who came to the table each with his own dis­tinct mo­tiv­a­tions. For liber­tari­an-minded Sen. Mike Lee of Utah, the ex­po­nen­tial growth in the fed­er­al pris­on pop­u­la­tion put what he con­siders an un­sus­tain­able bur­den on the coun­try’s budget and rep­res­en­ted an over­reach of fed­er­al gov­ern­ment. For Demo­crats like Sen. Cory Book­er of New Jer­sey, man­dat­ory min­im­ums have long been ex­acer­bat­ing the coun­try’s ra­cial in­equit­ies. For Sens. John Cornyn, the cham­ber’s No. 2 Re­pub­lic­an, and Shel­don White­house, a Rhode Is­land Demo­crat, a fed­er­al bill was an op­por­tun­ity to im­ple­ment pro­grams that were already work­ing back home. And for Minor­ity Whip Dick Durbin, over­haul­ing the justice sys­tem was a chance to fin­ish a ca­reer-long pro­ject and de­liv­er a ma­jor le­gis­lat­ive vic­tory to an out­go­ing Demo­crat­ic pres­id­ent from his home state.

There was only one prob­lem. The Ju­di­ciary Com­mit­tee chair­man they were work­ing un­der—Sen. Chuck Grass­ley—had strongly come out against re­du­cing man­dat­ory min­im­ums.

And the road to com­prom­ise was not easy. Com­mit­tee mem­bers had com­pet­ing pri­or­it­ies to see to the fin­ish line. Some viewed sen­ten­cing re­form as es­sen­tial, while oth­ers were more fo­cused on just en­sur­ing they en­acted a bill that re­duced re­cidiv­ism. White­house says that in 2014, after his and Cornyn’s COR­REC­TIONS Act passed out of com­mit­tee, he was ready to see it to the floor.

That bill al­lowed in­mates to earn cred­its for early re­lease if they main­tained good be­ha­vi­or and en­rolled in classes that pre­pare them for reentry. But ac­cord­ing to White­house, Durbin—the ma­jor­ity whip at the time—urged him to wait.

“They didn’t want our bill to go alone. They felt that it would be a good vehicle for broad­er sen­ten­cing re­form be­cause it had the most sup­port. That was a little bit hard for me to get over,” White­house says.

The way White­house tells it, a cor­di­al and deeply mean­ing­ful ne­go­ti­ation on broad reach­ing justice re­form this year was pre­ceded by a “fren­zied blow between me and Durbin when he was stop­ping my bill at the end of 2014.”

White­house says he ac­cused Durbin’s staff of “be­ing a dog in the manger,” not eat­ing and not will­ing to let oth­ers eat, either.

“I thought we should have got­ten our bill passed, but the up­shot was that Sen. Durbin and Sen. Lee agreed to work in really good faith to get to something that would prob­ably pass out of com­mit­tee in the fol­low­ing Con­gress if we stood down,” White­house says. “We sort of launched in­to this Con­gress with that new paradigm.”

Mean­while, all of the sen­at­ors in­volved had an­oth­er ma­jor obstacle they were eye­ing: con­vin­cing a re­luct­ant Sen­ate Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley not to stand in the way.

In his early days as chair­man, Grass­ley made no at­tempts to hide his aver­sion to re­du­cing man­dat­ory min­im­ums. The same day in Feb­ru­ary Lee and Durbin re­in­tro­duced their Smarter Sen­ten­cing Act, a bill that cut man­dat­ory min­im­ums roughly in half, Grass­ley went to the floor in protest.

“The myth is that there are thou­sands of low-level drug of­fend­ers, like people smoking marijuana, in fed­er­al pris­on for long terms. This is sup­posed to mean a waste of fed­er­al tax dol­lars, over­crowding, and un­fair­ness to people who should not be in pris­on,” Grass­ley said on the floor. “These myths are of­ten used to jus­ti­fy le­ni­ent and, frankly, dan­ger­ous sen­ten­cing pro­pos­als in this body. One of those pro­pos­als is the so-called Smarter Sen­ten­cing Act.”

At the end of Feb­ru­ary, Pres­id­ent Obama hos­ted a meet­ing with sen­at­ors at the White House to dis­cuss justice re­form. Grass­ley was not even in­vited.

But Grass­ley had shown he was not op­posed to all forms of justice re­form. In March 2014, he voted in fa­vor of the COR­REC­TIONS Act.

And Grass­ley was be­gin­ning to face pres­sure from donors and con­stitu­ents back home to act on some ten­et of crim­in­al-justice re­form.

In Janu­ary, ma­jor GOP bank­roller Charles Koch penned an op-ed in Politico tar­geted at mak­ing lead­ers in his party listen.

“We must hon­or the ideal of the pun­ish­ment fit­ting the crime by al­low­ing judges to ex­er­cise dis­cre­tion,” Koch wrote.

And in April, 130 faith lead­ers from Iowa sent Grass­ley a let­ter call­ing on him to use his gavel as Ju­di­ciary Com­mit­tee chair­man to lead the ef­fort in Con­gress to re­duce man­dat­ory min­im­ums.

Not to men­tion, the death that month of Fred­die Gray in Bal­timore re­ignited ra­cial ten­sions across the coun­try between law en­force­ment and cit­izens. Ad­voc­ates upped calls to bring justice re­form to the fore­front of the le­gis­lat­ive agenda in Con­gress.

Along the way, fel­low Sen­ate Ju­di­ciary mem­ber and pres­id­en­tial can­did­ate Lind­sey Gra­ham got in­volved. Gra­ham, un­like oth­ers ne­go­ti­at­ing, did not have his own le­gis­la­tion he was work­ing to pro­mote. White­house says that made him in­teg­ral in get­ting Grass­ley to the ne­go­ti­at­ing table in the first place.

Gra­ham’s staff was “very pro­duct­ive in put­ting the threads to­geth­er,” White­house says. “We began to get to a point where Chair­man Grass­ley agreed to come and have ac­tu­al ne­go­ti­ations with his ju­di­ciary team. That was a real break­through.”

By this spring, Grass­ley was ready.

From the out­set, Durbin says Grass­ley and staff made it clear that the Smarter Sen­ten­cing Act was not go­ing to be the vehicle to get a re­duc­tion in man­dat­ory min­im­ums. Durbin says he had to “close one door, but look for an­oth­er door we could both use.”

“He is not a law­yer, but boy is he a sharp ne­go­ti­at­or,” Durbin says of Grass­ley. “I can­not tell you how many hours we spent, our staff spent go­ing back and forth try­ing to find some com­mon ground.”

Durbin and Grass­ley first crossed paths nearly 20 years ago when they were work­ing on bank­ruptcy re­form. Even as they tangled from time to time, Durbin said he had “trust” that he and Grass­ley would find something to agree upon even­tu­ally. Durbin was no stranger to work­ing with strange bed­fel­lows on crim­in­al-justice re­form—he worked closely with con­ser­vat­ive Sen. Jeff Ses­sions in the Sen­ate to push through the Fair Sen­ten­cing Act in 2010, which re­duced the sen­ten­cing dis­crep­an­cies between crack and co­caine pos­ses­sion.

Through care­ful ne­go­ti­ations, Re­pub­lic­ans and Demo­crats work­ing on the crim­in­al-justice re­form bill came to a com­prom­ise on how to re­duce man­dat­ory min­im­ums. In­stead of cut­ting them in half, law­makers would ex­pand the “safety valve.” 

The move would give courts and judges more room to look at more in­di­vidu­al cases when sen­ten­cing, in­stead of be­ing wed­ded to tight sen­ten­cing guidelines, but also would give Grass­ley as­sur­ances that sen­tences would not be re­duced uni­lat­er­ally.

“We had to care­fully walk our way through it. There was noth­ing auto­mat­ic about it,” Durbin said about those ne­go­ti­ations.

There are some re­duc­tions in man­dat­ory min­im­ums in the bill. For ex­ample, the  so-called three-strikes pun­ish­ment was changed from a life sen­tence to a sen­tence of 25 years. But, sen­at­ors also agreed to in­crease some man­dat­ory min­im­ums on un­law­ful pos­ses­sion of a gun and in­ter­state do­mest­ic vi­ol­ence.

Sen. Tim Scott of South Car­o­lina, who in­tro­duced a ma­jor body-cam­er­as bill earli­er this year, said he watched as Grass­ley slowly evolved on re­form.

“Sen. Grass­ley should be con­grat­u­lated and com­men­ded for his ef­forts to be open-minded on the top­ic where most people said it was im­possible for him to move on it,” Scott said.  “The man is a thinker. He has been one of my two ment­ors in the Sen­ate, and the more you talk to him, the more you ap­pre­ci­ate and re­spect his de­sire to do the re­search.”

The bill, of course, hit oth­er road­b­locks along the way, even as Grass­ley began open­ing up to  sen­ten­cing re­forms. Law­makers te­di­ously grappled with who should qual­i­fy for the safety valve. Grass­ley wanted to en­sure that drug-traf­fick­ers wer­en’t eli­gible, but draw­ing the line between low-level drug of­fend­ers and king­pins proved con­ten­tious. With the de­tailed bill, there was plenty to dis­agree on. The le­gis­la­tion did everything from con­front­ing sol­it­ary con­fine­ment for ju­ven­iles to giv­ing the thou­sands of pris­on­ers who are still in­car­cer­ated un­der the old and dis­pro­por­tion­ate crack-co­caine sen­ten­cing guidelines a chance to pe­ti­tion the court for re­lief from their ini­tial sen­tences.

Ori­gin­ally, the goal was to present the bill right be­fore the Au­gust re­cess be­fore the pending budget battles be­came front and cen­ter, but law­makers were still stuck on lan­guage.

“It reached the point where in des­per­a­tion, I guess it is des­per­a­tion, Chuck and my­self and Mike Lee sat to­geth­er [in my of­fice] and sat with our staff people for a couple of hours and just hammered away and hammered away be­fore the Au­gust re­cess. And we were real close, but we didn’t really put it to­geth­er un­til we came back,” Durbin said.

But the pro­cess also gave a new gen­er­a­tion of sen­at­ors a glimpse at how Con­gress can work. In an era of budget show­downs and debt-ceil­ing stan­doffs, the ne­go­ti­ations offered every­one from Lee to Book­er a chance to prac­tice bi­par­tis­an­ship.

On Wed­nes­day, just 24 hours be­fore the bill was ex­pec­ted to be rolled out, there was still a stick­ing point. Ac­cord­ing to Durbin, Book­er still had con­cerns about how the le­gis­la­tion dealt with the crim­in­al re­cords of ju­ven­iles. Book­er wanted more than Grass­ley was will­ing to give. So in a frantic last-minute ne­go­ti­ation, Durbin texted Book­er to make sure he was on the floor for the 10 a.m. vote Wed­nes­day, and he asked Grass­ley not to dart off.

“At the end, I had to be the go between,” Durbin says, but he offered Book­er some ad­vice throughout the pro­cess.

The fi­nal bill in­cludes pro­vi­sions that al­low non­vi­ol­ent young of­fend­ers to have their re­cords ex­punged in cer­tain situ­ations.  

“You in­tro­duce the bill that is your ideal out­come. You know if you have been around here for awhile that this is not how the story is go­ing to end. You are go­ing to have to give,” Durbin said. “I told Cory, be­cause he is new to this scene, ‘You have got to ask your­self: ‘Al­right, would you rather have noth­ing at this point? Would you rather walk away from what we have?’”

Now that the ini­tial ne­go­ti­ations are over, the next chal­lenge be­gins as the rest of the Sen­ate weighs in. Sen. Jeff Flake, a Re­pub­lic­an on the com­mit­tee, is op­tim­ist­ic that the bill will get floor time even as the Sen­ate scrambles to fin­ish its budget work and a pres­id­en­tial elec­tion looms.

“It is not of­ten you get something with this kind of broad, bi­par­tis­an ap­peal to it,” Flake said. “If Grass­ley could move on something like that, it’s a big deal. Take ad­vant­age of it.”

And ad­voc­ates who once wanted more drastic re­duc­tions in man­dat­ory min­im­ums are also get­ting be­hind the bill.

“This bill isn’t the full re­peal of man­dat­ory min­im­um sen­tences we ul­ti­mately need, but it is a sub­stan­tial im­prove­ment over the status quo and will fix some of the worst in­justices cre­ated by fed­er­al man­dat­ory sen­tences,” said Ju­lie Stew­art, the pres­id­ent of Fam­il­ies Against Man­dat­ory Min­im­ums.

Some con­ser­vat­ives are still weary of the re­duc­tions in man­dat­ory min­im­ums, however.

“My im­pres­sion is they prob­ably went fur­ther than I am com­fort­able with,” Ses­sions said Wed­nes­day just be­fore the fi­nal bill was re­leased.

But con­vin­cing mem­bers at large after win­ning over Grass­ley is something mem­bers work­ing on the re­form are ready and mo­tiv­ated to do.

“I vis­ited fed­er­al pris­ons from time to time and not sur­pris­ingly they have law lib­rar­ies in these pris­ons where in­mates will take whatever free time you give them to do re­search. They all want to talk to me about sen­ten­cing,” Durbin says. “What I am say­ing is that there is a world out there—primar­ily Afric­an-Amer­ic­an—where this is a big deal for fam­il­ies. It is a ques­tion about wheth­er they will ever see their son again, wheth­er their fath­er will ever get out of pris­on.”

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