With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform

Key Republicans, including the president, have pushed for sentencing reform. But they need to go a little further.

November 7, 2018

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left. So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation. 

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it. Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general. He has that power. Now is the time to use it. 

Sessions’s record on criminal justice issues is well-known now, but it was no less clear in 2017. On everything from marijuana (he opposed it), to civil asset forfeiture (he supported it), to police oversight (he very much opposed it), Sessions’s nomination was a nightmare for anyone working to reduce mass incarceration. The year before his nomination, Sessions had gone even further, and killed, nearly single-handedly, a major, bipartisan sentencing reform initiative — the Sentencing Reform and Corrections Act. America’s criminal justice reform did need reform, Sessions said. It needs to incarcerate more people

True to form, Sessions’s tenure as attorney general was a reversion to decades-old, discredited, and dangerous law enforcement tactics. Shortly after assuming the job, Sessions tried unsuccessfully to derail negotiations over a “consent decree” — an agreement implementing oversight of Baltimore’s troubled police department. In May 2017, he revoked an Obama-era initiative designed to reduce the use of mandatory minimums in federal drug cases. At every opportunity, he warned of an impending crime wave to justify throwing more people in prison with less cause. 

The crime wave, by the way, never materialized: When crime instead fell, Sessions took credit for it

In a surprising breach of decorum, Sessions also tried to continue dictating legislative policy. When Grassley revived the Sentencing Reform and Corrections Act, Sessions wrote a letter to his former colleague, saying the bill’s passage would be a “grave error” that “runs counter” to administration policy. Grassley understandably took it as a personal slight: “AGs execute laws CONGRESS WRITES THEM!,” he tweeted.

Sessions won that round. But especially now that he’s out of power, he’s poised to lose the next. Indeed, the president now supports criminal justice reform and was prepared to overrule Sessions’s objections to advance the very sentencing reform bill Sessions had killed before. 

But with Sessions out, and Grassley in charge of seating his replacement, there’s no reason any objection should have to be overruled in the first place. Instead, if Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform. And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts. 

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.). By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years. 

Standing against mass incarceration probably wouldn’t hurt Republicans’ electoral chances in the future, either. It’s time to do the right thing, and give the country an attorney general who's up to the challenges posed by the era of mass incarceration. 

(Image: Jessica Kourkounis/Getty)