The Hostage Situation Over Criminal Justice Reform

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January 22, 2016

By Richard Hahn

Thinking back on the very first official response to a State of the Union Address, delivered by Gerald Ford and Everett Dirksen in 1966, one cannot help but draw comparisons to Speaker Paul Ryan and Senate Majority Leader Mitch McConnell today. Perhaps it’s not surprising that our legislative leaders are grappling with the same issues as their counterparts from half a century ago. In 1966, the focus was on reducing poverty and creating social opportunity. These happen to be two key planks of the plan that emerged from the recent GOP Congressional retreat in Baltimore.

According to Ryan, the biggest piece of “entrepreneurial” legislation Republicans will champion in 2016 is criminal justice reform. The tangible item is a bill set to come to the floor of the Senate, S. 2123, the Sentencing Reform and Corrections Act. (A matching bill, H.R. 3713, has been approved by the House Judiciary Committee.) If passed, the bill would add flexibility to federal sentencing guidelines, retroactively alter the set of mandatory minimums in place for federal drug offenders, and shift focus to rehabilitation of offenders through diversion and other programs. Ryan has long been an advocate of poverty reduction, and he sees an opportunity this year for Republicans to talk about issues they are not usually comfortable addressing. Two weeks ago he hosted an anti-poverty summit in South Carolina, and, more recently, he joined church leaders in Dallas on MLK Day to discuss poverty and criminal justice reform.

McConnell, however, will have the final say as to whether the bill comes to the floor in the Senate, and this is not a given. While his deputy, Majority Whip John Cornyn, has called the legislation, “one of those rare, magical moments where you see things coming together on a bipartisan basis,” McConnell seems more interested in normalizing the appropriations and spending process, a goal that will require much of his political capital.

Criminal justice reform has become a bargaining chip in Congress, and it’s easy to understand why. If the Republican majority allows S. 2123 to pass, legislators can claim they are realistic about crime and fiscal responsibility. If they block it, those same legislators can claim they are tough on crime and refuse to work with the Obama White House.  The bill’s Achilles’ heel is its bipartisan character, and interest groups are targeting it as a key piece of Obama’s legacy. Most recently, gun lobbyist Sam Geduldig promised clients to “hit Obama where it hurts” by holding S. 2123 hostage if Congress doesn’t curb the President’s executive actions on gun control. Former federal officials have flocked to alternately support and oppose the bill, swapping joint letters, and creating an atmosphere of controversy that was not foreseen for this relatively moderate piece of legislation.

The situation is further complicated by the contentious GOP primary campaign, during which Ted Cruz and Donald Trump have cited recent spikes in urban violence to stoke fears of immigration. The side effect is that much of America mistakes an outlier situation for a new trend. Cruz has said of S. 2123, “I don’t think what the criminal justice system needs is additional leniency for violent criminals. What this bill does is goes precisely backwards from where we should be going.”

Even establishment conservatives are using S. 2123 for leverage. Sen. Orrin Hatch and Rep. Bob Goodlatte (sponsor of H.R. 3717) have said that criminal justice reform will not go forward without “mens rea” provisions, which would force federal prosecutors to prove criminal intent. Admirable in principle, this concept is seen by many as a way for white-collar defendants to avoid criminal liability.

Criminal justice reform in 2016 will be a dodgy fight, one that has a better chance of succeeding if it is kept out of the spotlight. But S. 2123 should be passed because it is good and reasonable legislation. Further, it is a step toward reestablishing a functioning bipartisan legislature. Back in 1966, Gerald Ford used words that sound quaint today to describe bipartisan efforts on social reform: “Republicans have worked with the President…” Today, it’s not that simple.

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