Last week, in a move that is surprisingly bipartisan for modern times, the Senate Judiciary Committee advanced the Sentencing Reform and Corrections Act. This bill meant to reduce the length of sentences and the use of mandatory minimum sentences for nonviolent offenses, applying many reforms retroactively so people in jail right now for these offenses can go free. Criminal justice reform has long been seen as a liberal cause, but recent years have seen a surge of Republican interest in some steps toward reducing mass incarceration, and this bill advanced out of committee by 16-5 vote last Thursday.
That level of support suggests there's a real chance this bill could pass Congress with a strong bipartisan majority, but advocates for criminal justice reform fear that Senate Majority Leader Mitch McConnell, will never let it get that far. The issue causes real conflict within the Republican Party, especially in the age of Donald Trump. With the 2018 midterms just ahead,McConnell may not want to exacerbate intra-party tensions by allowing debate, still less a vote, on a bill that Attorney General Jeff Sessions has portrayed as soft on crime.
"We have a lot of Republican allies who believe in an urgent need for sentencing reform, for broad criminal justice reform," said Ames Grawert of the Brennan Center, pointing out that Judiciary Committee chair Sen. Chuck Grassley, R-Iowa, introduced this bill. "A lot of them are scared to go up against the president on something that he doesn’t appear to have a strong belief on -- but the attorney general has a strong belief on.”
Sessions tried to kill a 2015 version of the bill when he was a senator from Alabama and, in an unusual move, sent a letter to Grassley last Wednesday in which he wrote, "Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation’s history would make it more difficult to achieve our goals and have potentially dire consequences.”
Grassley responded with outrage.
To add another wrinkle, Trump seemed to promise criminal justice reform during his State of the Union address last month, saying, "We will embark on reforming our prisons to help former inmates who have served their time get a second chance."
Kara Gotsch of the Sentencing Project is skeptical "His opinion tends to fluctuate," she said, "but where the attorney general is is very clear -- which is not a good place in terms of criminal justice reform."
It's worth noting that Trump only made a vague promise to help former inmates, which suggests programs to help people getting out of prison rather than reforms to the sentences themselves. But, as Gotsch noted, Trump backed away even further from criminal justice reform a few days after that speech, claiming that "the economy is just booming" and the problem "is going to solve itself."
"We’ve gone through decades of fluctuations of our economy, up and down, and still we have a huge mass incarceration crisis,” Gotsch said in rebuttal.
The problem is, bluntly put, that the issue is still racialized, especially on the right. While 71 percent of Americans, including 57 percent of Republicans, believe that it's important to reduce the prison population, Trump knows full well that many of his supporters would revolt if he took steps to reduce the inhumanity of a criminal justice system that targets people of color disproportionately. While he may say nice words once in awhile, ultimately Trump is predictable, and will always choose the policy that is most congruent with a white supremacist point of view.
The public has seen this dance before with Trump and immigration. He makes smiley faces at the cameras and claims to want some kind of pathway to citizenship for undocumented young people brought here as children. But he has repeatedly tanked any legislation that might make that happen. Trump will never betray his racist base, even to embrace broadly popular legislation.
To make the situation worse, Grawert said, this bill is a "much more tepid attempt at sentencing reform than what was originally presented in 2015." He noted that it has been watered down to get votes from right-wing Republicans like Sen. Tom Cotton, R-Ark., but even with all those compromises, Grassley was unable to get their votes or support from Sessions. Grawert is worried that further efforts to water the legislation down will end in the same result, because opponents of this bill ultimately don't want any kind of reform at all.
Because of all this, Gotsch worries that McConnell will avoid even bringing the bill up for a vote, which is how he avoided intra-party conflict with a previous version.
The majority leader's "calculation last Congress was purely political, not based on substance," she said, "so my assumption is it will be political again."
Even in those terms, Gotsch argues that McConnell will be making a mistake if he kills this bill quietly rather than put it up for a vote. The legislation would likely pass with a large bipartisan majority, because most Democrats and a sizable chunk of Republicans are prepared to support it.
"It would be an easy win," she said. "We know that there is broad bipartisan support ... not just with lawmakers, but with the public. They certainly could benefit from more wins in the Senate."
Under normal political circumstances, this would be an easy decision, even for someone as calculating as Mitch McConnell. But even though "the public really believes in reform," Grawert said, the issue is "getting hung up on the politics of the Trump administration.” As with immigration reform, those with hardline, racism-inflected views have been able, under Trump, to put themselves in position to veto any positive change. As long as Republicans control Congress, congressional leadership will likely be too afraid of offending Trump and Sessions to take any major steps forward on this critical social justice issue.