Use Congress’s Power of the Purse to Jump-start Criminal Justice Reform

With cautious optimism, Congress may pass a modest sentencing and prison reform measure this year via a compromise on the FIRST STEP Act hopefully coupled with sentencing reform. The reality, though, is that dozens of worthwhile criminal justice reform bills are introduced every session and quietly die. 

But many of these reforms can be accomplished through an alternate route — attaching reforms as amendments to spending legislation. Unlike standalone reform bills, Congress must pass spending bills each year, or the government shuts down on October 1, the start of the fiscal year.

When the Senate returns from its truncated August recess this week, one of its priorities will be to get spending bills passed. (The House will return from its August recess after Labor Day.) Among the bills needing attention is the Commerce, Justice and Science (CJS) appropriation, which provides funding for the Department of Justice. Here are a few ways reforms can be added to the House or Senate CJS bills as amendments: 

• Beef up funding where it will make a difference: Last September, Ed Chung of the Center for American Progress and I outlined one approach for some spending priorities that appropriators should consider: diversion for mental health and substance abuse, reducing incarceration, eliminating the criminalization of poverty, and support for indigent defense. Increasing federal funding where it really matters, and decreasing funding where it doesn’t (also called an “offset” amendment), is one clear path for reforms.
• Sometimes a little funding goes a long way: The CJS bill funds over $62 billion in federal agencies and programs, so it’s worth remembering that even a tiny shift can have a major impact. For example, the Justice Reinvestment Initiative (JRI) has spurred criminal justice reforms in 35 states and an 11-percent drop in state imprisonment. Yet, JRI has never been a stand-alone bill. Instead, it was created by attaching a small amount of money to the CJS bill. JRI costs just $25 million a year.
• Employing “carve-outs” and “set-asides”: JRI also has been the beneficiary of a little trick known as the “carve-out” or “set-aside.” In essence, Congress funds one initiative within a larger, sometimes unrelated program. Doing so allows Congress to take credit for both, without increasing spending. For example, this year, Congress set aside $76 million for nine separate initiatives from an overall $416 million for the Byrne Justice Assistance Grant (JAG), a general-purpose law enforcement grant program.
• The percentage set-aside: A percentage doesn’t call attention to itself like a specific dollar amount — but it’s equally effective. Congress employs this tactic to fund any number of things, including a good deal of DOJ research and evaluation. If Congress were to set aside just 10 percent of the almost $3 billion appropriated each year to DOJ Grant programs, that would be close to $300 million — and a nice down payment on the Reverse Mass Incarceration Act that would go a long way toward reducing the prison population by 40 percent.
• Setting conditions on spending: Some types of reform don’t need funding but can still be implemented through a spending bill. For example, Sen. Bernie Sanders’s (I-Vt.) No Money Bail Act restricts states with money bail systems from receiving Byrne Justice Assistance Grants. That could be implemented as early as October 1 by incorporating it into the CJS bill.

There are rules that apply to amending federal spending bills. For example, an amendment that increases spending is vulnerable to a procedural “point of order” that effectively kills it. But carve-outs, set-asides, and offset amendments generally aren’t a problem. In the House, an amendment that establishes a new — or “unauthorized” — program is subject to a point of order, but not so in the Senate. These rules aren’t a bar to reform.

Of course, criminal justice reform legislation is important and, if enacted, could do much to improve fairness and reduce needless incarceration. But attaching reforms to spending bills can be a quicker path. Congress must pass a CJS spending bill by October 1 to keep the Justice Department funded for fiscal year 2019. Why not use this opportunity to get some reforms enacted now?

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