Ready for Groundbreaking Bipartisan Shifts in Criminal Justice Reform

November 14, 2018; New York Times

Sometimes, policy moves so slowly it seems to be headed in reverse. The wise philanthropist stays the course, building infrastructure, programs, and public will. According to the ACLU and the Marshall Project, the biggest winner this past midterm election was not the Democrats or the Republicans, but criminal justice reform. Taylor Pendergrass, Strategic Advisor for the ACLU’s Smart Justice Campaign, writes,

At least since the 1980s, criminal justice reform has been an untouchable third rail in electoral politics. The 2018 midterms show that the landscape has shifted. This year, politicians across the country, led by Black candidates, took principled and passionate positions on criminal justice reform.

The forced resignation of Jeff Sessions as US Attorney General has certainly helped open the path, but in any case, as Daniel Gotoff and Celinda Lake at the Marshall Project write, “The voters are ahead of politicians when it comes to criminal justice reform.”

The politicians seem to have noticed and are starting to move. Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), both of whom serve on the Senate Judiciary Committee, introduced a bill that would, among other things:

• Retroactively reduce the sentencing disparity between crack and powder cocaine, which was one of the more blatant ways in which the law disproportionately punished people of color
• Incentivize prisoners to successfully complete evidence-based programs to reduce recidivism through commissary grants, time credits, and other rewards, for which the bill authorizes $75 million
• Prohibit the use of restraints on female prisoners during pregnancy, birth, and postpartum recovery
• Enable judges to sidestep mandatory minimums in some cases
• Eliminate the “stacking” regulation that makes any crime carried out while in possession of a firearm a federal offense

The bill is certainly not perfect, and it even falls short of a similar bill that Grassley and Durbin cosponsored during Barack Obama’s presidency. For one thing, the stacking and mandatory minimum reforms won’t apply retroactively. The time credits for recidivism programming cannot be used by incarcerated people facing deportation. There isn’t sufficient prosecutorial oversight. And of course, the bill fails to grapple in a comprehensive way with the conception of the prison system as a state-sponsored method for controlling communities of color. But, it’s a step.

“We have the clearest path forward that we have had in years,” Holly Harris, the executive director of the Justice Action Network, told Nicholas Fandos and Maggie Haberman of the New York Times. “This would be the first time that these members have voted on a piece of legislation that turns away from the lock-’em-up-and-throw-away-the-keys policies of the 1990s. That is groundbreaking.”

Though he could not fail to reassure his constituents that he planned to get tougher on the “truly bad criminals,” President Trump made a statement that came close to acknowledging the reality of the situation: “Some people got caught up in situations that were very bad.” He has promised to sign the bill if it comes to his desk, and Senate Majority Leader Mitch McConnell has indicated that if it receives the support of 60 senators, there’s a good chance he will bring it to the floor for a vote. (Which, let’s all remember, is his job.) The bill also has the support of the Fraternal Order of Police.

As Pendergrass at the ACLU reminds us, though Grassley and Durbin will undoubtedly be fêted if the bill should pass, the momentum behind it was built by “a movement that is thriving and building the long-term momentum and political infrastructure needed to undo decades’ worth of tough-on-crime policies that have decimated communities.” Black and brown candidates across the country made prosecutors’ races competitive for the first time in decades and ran on unabashedly pro-reform platforms for dozens of other offices and won, giving lawmakers a clear mandate. Criminal justice reform is supported by the majority of Americans; the Marshall Project reports that nearly 20 percent of voters support “a complete overhaul of the system.”

If the bill does indeed pass, nonprofits will be called to aid in its implementation, since those “evidence-based recidivism programs,” retroactive accountability, and other aspects of the bill that require planning and have a direct impact on inmates have been priorities of organizations across the country for years, even decades. States and localities have been well ahead of the federal government on such programs, and a national infrastructure is there to help.—Erin Rubin