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Don’t Let Fair-Weather Friends Derail Criminal Justice Reform

The FIRST STEP Act promises to improve conditions for people already incarcerated in federal prison, but fails to address the harsh punitive federal drug sentences that send too many people there in the first place.

July 6, 2018
Cross-posted from Houston Chronicle
Despite the daily chaos of 2018 politics, Congress stands dangerously close to actually accomplishing something. Specifically: criminal justice reform, where key senators are working to improve a weak but promising “prison reform” bill. If they succeed, the enhanced bill could achieve bipartisan support, keep families together, and reduce unnecessary incarceration.
Here’s where things stand. This spring, the Trump administration began building consensus around a bill to address some of the worst aspects of the criminal justice system. The result is the FIRST STEP Act, which the House passed this April. The bill promises to improve conditions for people already incarcerated in federal prison. But it fails to address the overly harsh, unnecessarily punitive federal drug sentences that send too many people there in the first place and make America the world’s leading incarcerator. This is a fatal mistake, we and other reform groups have argued, as it fails to take any steps toward ending mass incarceration.
The omission of sentencing reform is as baffling as it is ill-advised, because the Senate broadly agrees on the need to fix how we punish drug offenders. Just last week, Sens. Chuck Grassley, R-Iowa, and Dick Durbin, D-Ill., held a press conference to rally support for their own bill: the Sentencing Reform and Corrections Act (SRCA), which would cautiously reduce sentences for some federal drug crimes. The unlikely pair insists that Congress take up their bill — which is the result of two years’ worth of negotiations — before moving on the president’s weaker one. And Grassley, who chairs the powerful Senate Judiciary Committee, is in a position to make demands.
Without some compromise, both bills may stall.
But there’s a chance to avoid this. Rumors have started circulating that some legislators are open to combining FIRST STEP with the SRCA, creating a “best of both worlds” package that would both check the growth of mass incarceration and help people already behind bars.
One thing stands in the way: a cadre of far-right senators have refused to endorse even moderate sentencing reform. Chief among them: Republican Sen. Tom Cotton, R-Ark., and Texas’ Cruz. Cruz was 1 of just 5 votes against Grassley’s bipartisan bill this past February. He offered an amendment to gut the bill, was voted down, and refused to support the final package.
Cruz’s vote left us scratching our heads, because just three years ago the Senator wrote an essay for the Brennan Center — alongside other 2016 presidential candidates Scott Walker and Mike Huckabee — about the vital importance of sentencing reform.
“Harsh mandatory minimum sentences,” Cruz wrote, “have contributed to prison overpopulation and are both unfair and ineffective.”
He expanded on this sentiment in a 2015 press release: “Right now today far too many young men, in particular African American young men,” he said, “find themselves subject to sentences of many decades for relatively minor non-violent drug infractions.” He continued: “We should not live in a world of Le[s] Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.”
So why would Cruz now vote to leave thousands of Jean Valjeans in prison, serving the kinds of absurdly disproportionate sentences that drew even the president’s compassion just last month?
That means Cruz and his fellow holdouts need to reevaluate — again. A quick change of position could give reformers the momentum they need to propel the FIRST STEP Act and the SCRA to the president’s desk, where Trump has pledged to sign whatever Congress offers him. That would give conservative legislators a major, popular legislative accomplishment to campaign on through November, restore voters’ flagging faith in Washington, and help Republicans move past the cruel spectacle of family separation. And, of course, it’s the right thing to do.
To be sure, all of this may come to naught. Sessions could convince the president to veto a joint bill if it includes sentencing reform, and wary Republicans could desert en masse.
But supporting sentencing reform, even if it’s doomed, means being on the right side of history. That’s worth something — especially in the Trump era.
Ames Grawert is the John L. Neu justice counsel at the Brennan Center for Justice at the New York University School of Law
Image: (Flickr Commons/JP Davidson)