Among advocates campaigning to reduce the country’s bloated prison population and invest in rehabilitation, there is a growing sense that a) Congress is unlikely to pass anything this year worthy of being called reform, and b) it might be better to start over in 2017.
Even the decidedly modest reforms that had some momentum a few months ago – measures that would mainly reduce mandatory minimum sentences for some drug offenders – have run into fierce opposition from law-and-order hawks such as Sen. Tom Cotton, R-Ark, who credits mandatory minimums for the 25-year decline in violent crime.
Major reform still has a formidable array of advocates. President Obama yearns to make justice reform part of his legacy and has lobbied for it in public and in private. House Speaker Paul Ryan has also professed support, as a way of slowing the community-destroying cycle of poverty, crime and punishment, not to mention a way of demonstrating that the GOP is not indifferent to the blacks and Latinos who are disproportionately ground up in the current system. Reform is backed by a strange-bedfellows alliance of conservative and progressive interest groups and by many big-city law enforcement officials. And a new poll released Thursday by the Pew Charitable Trusts finds strong public support for reducing or even eliminating mandatory minimum sentences and letting prisoners earn time off their sentences by participating in programs like job training and drug counseling.
Supporters of reform are mobilizing a last-ditch assault on Capitol Hill, hoping to convince lawmakers that reform is a matter of public safety and fiscal prudence. They are pinning some hopes on Ryan, on endorsements from police chiefs and prosecutors, and on the fact that everybody is still actively negotiating. “The clock has not run out,” said one congressional aide. Gloomier advocates say that even if Ryan delivers in the House, it would take a near-miracle to get anything bold through the Senate.
Some reform proponents believe the best they can expect is that Congress will grant a very narrow reprieve for one group of crack cocaine offenders. Back in 2010, Congress reduced sentences for inmates who were punished under a law that treated crack cocaine far more severely than powder cocaine. (The most conspicuous difference between the two forms of the drug is that powder is more popular with white users, while crack users tend to be black.) An estimated 5,800 people convicted before 2010 remain imprisoned. Congress could make these prisoners retroactively eligible for a judicial review of their sentences.
In the absence of legislation, President Obama will surely come under pressure to use his powers of executive clemency aggressively in his final days. Thousands of federal prisoners have applied to have their sentences commuted, but the cases are backed up in a processing pipeline.
If reform dies on Capitol Hill, the autopsy is likely to identify several causes of death.
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There are few profiles in courage in an election year. Witness Sen. Ted Cruz, the Texas Republican who as recently as 2014 told a press conference that mandatory minimum sentences currently in force have condemned “far too many young men, and in particular far too many African-American young men” to life-destroying sentences for relatively minor drug offenses. Touting his home state’s record of reduced incarceration and falling crime rates, he declared, “We need to recognize that young people make mistakes, and we should not live in a world of Les Miserables.” Now campaigning for the White House as the meanest man in the field, Cruz has swiveled, denouncing a bill that is considerably less generous to offenders than the one he supported back then. “We know to an absolute certainty that an unfortunately high percentage of those offenders will go and commit subsequent crimes,” he says now. “And every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents.” Cruz may be the least popular man in the Senate, but many a lawmaker can imagine hearing the same alarmist rhetoric coming from the lips (and campaign ads) of a primary opponent.
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That is especially true in a campaign year fueled by anger and fear. Proponents of reform – pointing to the experience of several red states like Texas, Georgia, Mississippi and Utah – say it has become safe for politicians to be “smart on crime” rather than merely tough on crime. But surges of murder in several major cities, televised protests against police behavior, and fear-mongering by some presidential candidates have contributed to a perception – never mind the facts – that crime is rising ominously.
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The heroin epidemic — which has hit especially hard in white suburbs, a.k.a. swing voter territory — may have made politicians wary of legislation that mainly benefits drug offenders in federal custody. Of course, in contrast to earlier heroin binges that hit black neighborhoods most heavily, this is being billed more as a health problem than a crime problem. But only up to a point: New Hampshire’s attorney general has proposed to begin charging drug dealers with second degree murder if their customers overdose.
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Many Republicans would rather stick pencils in their eyes than pass something President Obama could claim as a legacy. Conversely, some Democrats fear the president wants a bill so badly he’ll settle for a bad bill. Last week the president met privately with the hardline chairmen of the House and Senate judiciary committees, no Democrats invited. Much speculation ensued about what deal the president might have cut.
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Congressional process favors defense over offense. In the Senate, any member can demand “regular order,” which means the bill is open to amending. And opponents are surely prepared to sabotage sentencing reform by amending it to death. One potential poison pill is an amendment requiring the government to prove intent, or “mens rea” (Latin for “a guilty mind”), when it tries to convict someone of a crime, a measure the administration fears would make it harder to prosecute white-collar crimes.
