Competing visions for criminal justice reform may prevent the Senate from taking any action on one of President Trump’s domestic policy initiatives. The lack of movement isn’t out of any significant opposition to the effort. Instead, the gridlock comes from whether to include modest sentencing reforms backed by Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Dick Durbin, D-Ill.
Grassley is a relatively new convert to the cause of criminal justice reform. In February 2015, he made a floor speech against legislation, the Smarter Sentencing Act, sponsored by Sen. Mike Lee, R-Utah, that would cut mandatory minimums in half for low-level, nonviolent offenders. Supporters of sentencing reform put pressure on Grassley, who eventually got on board with a bipartisan bill, the Sentencing Reform and Corrections Act.
In February, the Senate Judiciary Committee marked up the latest version of the Sentencing Reform and Corrections Act (SRCA), S. 1917, which was introduced by Grassley. The bill includes sentencing reforms, including an expansion of the existing federal safety valve exception to mandatory minimum sentences and retroactivity of the Fair Sentencing Act of 2010. It would also implement programs to reduce recidivism in federal prisons. The bill cleared the committee with bipartisan support, although five Republicans voted against it.
The House took a different path by focusing on prison reform. The FIRST STEP Act, H.R. 5682, would implement programs to reduce recidivism. The bill allows prisoners to earn time credits for the successful completion of programs and the reduction of their risk of reoffending. It also clarifies current law to ensure that the Bureau of Prisons provides for up to 54 days of good time credits per year, as is written in statute, to those prisoners who demonstrate model behavior during their time in prison.
The BOP has warped this law by jumping through mathematical hoops to reduce the number of days per year to 47. Essentially, the BOP interpreted the wording of the law to award good time credits based on the number of days served instead of on the length of the sentence imposed, as Congress intended, to calculate the plainly stated maximum of 54 days down to a maximum of 47 days. This is entirely nonsensical and a clear abuse of BOP power to unnecessarily keep model prisoners behind bars longer than Congress’ intention, as 18 U.S.C. § 3624(b)(1) explicitly says 54 days. The FIRST STEP Act would right this wrong.
Although in agreement with the goals of prison reform and sentencing reform, Sens. Durbin, Cory Booker, D-N.J., and Kamala Harris, D-Calif., tried to affect the outcome of the vote in the House by penning a letter slamming the FIRST STEP Act on tenuous grounds ahead of the vote — likely for political posturing reasons. This attempt to sabotage the vote failed and even likely resulted in more Democrats voting for the legislation. With the support of the White House, the House passed the FIRST STEP Act by a strong bipartisan margin, 360 to 59.
But the FIRST STEP Act hasn’t moved in the Senate. A companion bill led by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I., has been referred to the Senate Judiciary Committee. Grassley has said that at least some SRCA-style sentencing reforms would have to be added to the FIRST STEP Act before it can move forward.
Few in the Senate question the merits of the FIRST STEP Act. After all, an earlier version of the bill passed out of the Senate Judiciary Committee 15-2 in March 2014 and the bill is similar to the approach taken by states like Georgia, South Carolina, and Texas. These states, as well as many others, have focused on reducing recidivism to both avert prison construction costs and enhance public safety.
Politics are playing a role in the discussion. Democrats with their eyes on the party’s presidential nomination view criminal justice reform as a campaign issue. Selfishly killing the FIRST STEP Act for little more than political gain risks infecting criminal justice reform with the same toxicity that has plagued immigration reform proponents, not to mention that it also denies much-needed relief to communities, families, and individuals who have been severely affected by crime.
The next step in the process is to strike a deal on the Senate side that will add modest sentencing reforms to make the legislation acceptable to Grassley. The additions must not, however, divide the Republican conference to ensure that Senate Majority Leader Mitch McConnell will be willing to bring the bill to the floor for a vote.
It is a delicate balance to strike, but the Senate, which often refers to itself as the greatest deliberative body in the world, should be up for the challenge. On bipartisan legislation that has the backing of the White House, working out a deal on FIRST STEP should be a layup.
Jason Pye (@pye) is the vice president of legislative affairs for FreedomWorks. Sarah Anderson is a policy analyst for FreedomWorks.
