The criminal justice reform bill now before the Senate turns out to have a loophole. It would give wardens of federal prisons the authority to make “dangerous/violent criminals” eligible for early release. The process by which wardens would make “medium and high risk prisoners” eligible for a shorter sentences is uncomplicated. Wardens would merely allow them to use their “time credits to transfer into early release”—that is, something supposedly only for less risky prisoners. (Clarification added, 12/4/18: A prisoner who has been designated dangerous is not eligible for a shortened sentence. Before a warden can make the prisoner eligible, he must first decide the prisoner is no longer dangerous.)
At the very least, this loophole undercuts the claim by supporters of the bill that “violent criminals and sex offenders” would not qualify for shortened sentences. Backers of the legislation, now before the Senate, include President Trump, Democrats, the Chamber of Commerce, and the Senate Judiciary Committee.
And it has a surprising array of conservative groups on its side, thanks especially to the influence of the Koch Brothers. The Heritage Foundation, Freedomworks, and Americans for Prosperity have endorsed the bill, though it’s hardly a conservative initiative.
The loophole is certain to make the 103-page bill even more controversial than it’s already become. The House passed its conservative version of criminal justice reform weeks ago. The Senate legislation has lurched to the left several times.
The Senate must vote in its lame duck session this week or kick the bill over to the next session of Congress in 2019. Supporters are pushing for quick passage, opponents for a delay until next year.
There’s a simple reason for this disagreement: Supporters believe they can deliver more than 60 votes, sufficient to cajole Senate Majority Leader Mitch McConnell into scheduling a vote this week. Earlier this year, he decided a vote wouldn’t be held before the midterm election.
While McConnell hasn’t declared a position on the bill, it’s clear he’s no enthusiast. Nor has he kept quiet about his qualms. Polls suggest passage would please Democrats and do nothing to bring Republicans out of the doldrums caused by their thumping in the midterm.
A survey in September by ORC International asked this question: “Do you support or oppose a proposal to reduce federal government penalties for traffickers in heroin, fentanyl, and similar drugs?” The result was 70 percent of Democrats, 87 percent of Republicans, and 73 percent of independents are opposed.
For their part, Republican foes, led by Senator Tom Cotton of Arkansas, have a good reason for delaying a vote: They’re behind, but gaining. At a Senate GOP lunch last week, senators who had been publicly silent spoke out against the bill. And undecided senators questioned the need to vote so quickly.
The bill has been around for months, but the loophole wasn’t discovered until late last week. This suggests it hadn’t been vetted effectively. The loophole doesn’t appear to be gaping. Federal wardens have never been known for being soft on criminals.
But Cotton, for one, fears prison overcrowding could prompt wardens to pursue faster release of inmates, including dangerous ones. If they did, Democrats and civil right groups would surely be in their corner.
Backers of the bill haven’t commented on the loophole and may not have learned of it. But someone slipped it quietly into the bill. And when senators discuss its fate, we may learn who it was.
