Don't Lock Up Prison Reform

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country? We certainly hope so.

March 7, 2016

Cross-posted at U.S. News & World Report

With a heated partisan battle over the future of the Supreme Court entering a stalemate, and some Democrats threatening to shut down the Senate, many are starting to expect nothing will get done in Congress this year.

But it doesn't have to be that way. There is one topic on which lawmakers can act, even in this bitter climate. The same Senate Judiciary Committee members sparring over the Supreme Court nomination process will soon announce a long-awaited compromise on a bill to help reduce America's prison population.

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country? We certainly hope so. The bill would be the largest congressional action on criminal justice reform in a generation, and a rare attempt at cooperation across party lines. Lawmakers should not allow partisan bickering over the next Supreme Court justice to destroy a chance to fix a system we all agree is not working. Congress must act fast, in this rare area of bipartisan accord, to pass sentencing reform.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing laws to implement these lessons. It lowers mandatory minimums for some low-level drug crimes. It gives judges the discretion to depart from minimum sentences for low-level offenders if they believe specific circumstances of the crime warrant it. Most importantly, these changes put resources where it matters: arresting, prosecuting and punishing those who commit the most serious and violent crimes.

Currently, fewer than half of federal inmates convicted for drug crimes have a history of violence. And only 14 percent of drug prisoners qualify as high-level managers or leaders of the drug trade. Incarcerating low-level dealers for decades at a time is not the most effective response to drug abuse. And research shows that longer sentences can often increase recidivism, especially for low-level offenders. 

Last month, Sens. Tom Cotton and Jeff Sessions raised concerns the legislation would jeopardize public safety. In response, a group of nationally prominent police chiefs and prosecutors – the men and women who protect our safety every day – explained how the bill would actually help reduce crime.

Now, co-sponsors Sens. John Cornyn, Chuck Grassley and Mike Lee are revising the bill to address these anxieties. At least two major changes are expected. One would remove a provision from the bill that would have reduced mandatory minimums for repeat felons caught with a firearm. Another would limit current prisoners' ability to seek reduced sentences under the new law if they committed certain serious crimes. To many progressive advocates, these changes significantly reduce the breadth of the bill.

But even if there's a compromise bill, the next step is getting it to the floor for a vote. Last week, Grassley met with President Barack Obama to tell him the Judiciary Committee will not hold a hearing or vote if he puts forth a Supreme Court nominee. It's rumored that some Democrats would allow the sentencing bill to falter if Republicans try to block a nominee.

But it is a false choice to pit sentencing reform against a Supreme Court battle. Accord on one shouldn't be overridden by combat on the other. Lee and Sen. Pat Leahy, who are hoping both sides can still work together on the bill, seem to understand this. "The Judiciary Committee can consider a Supreme Court nominee and continue building support for bipartisan criminal justice reform," Leahy noted. We hope their colleagues follow.

Congress has passed legislation during other confirmation clashes. While Justice Elena Kagan's nomination was pending in 2010, Congress passed a series of significant bills including sanctions against Iran, the Dodd-Frank Act, and another criminal justice law called the Fair Sentencing Act. In 2005, a year that saw the confirmation of two new Supreme Court justices (Roberts and Alito), Congress passed a free trade act.

Both parties have a decision to make. Senate Majority Leader Mitch McConnell must decide whether to bring the measure to the Senate floor. His Democratic counterparts Harry Reid and Nancy Pelosi must choose whether to bridge the divide, even if temporarily. We will soon see how much the parties really care about getting government to work – and how much their cares about over-incarceration are more than just words.

Our politicians will not be able to sell the notion that the people's business should come to a complete halt for the sake of election-year posturing. The time has finally come for criminal justice reform. With Congress at a flashpoint over the Supreme Court, bipartisan cooperation to act matters now more than ever.