Congressional lawmakers who this year touted a bipartisan effort to pass criminal justice reform legislation now concede passage is unlikely this year, leaving its fate largely in the hands of the next president.
Those most closely connected with the effort to move legislation say while consideration in the House is possible, the window is likely closed in the Senate thanks to staunch opposition from red-state Senate Republicans, as well as some Democrats who have shown “an unwillingness to be bipartisan” because they want to hold out for more liberal reforms that could be possible under a Hillary Clinton presidency.
As a result, advocates are now turning their efforts to setting the stage for passage in 2017, where the reform effort will hinge in large part on who wins the White House.
“We’ve been engaging with both campaigns and they have been interested and have asked a lot of questions,” Holly Harris, executive director of U.S. Justice Action Network, told the Washington Examiner.
While President Obama and to some degree Clinton are proponents of criminal justice reform legislation that would reduce mandatory sentencing guidelines for non-violent crimes and make other changes to federal justice system, Republican presidential nominee Donald Trump has signaled he may be reluctant to support it.
Trump has campaigned as a “law and order” choice for voters, and recently criticized Obama’s decision to commute the sentences of hundreds of non-violent offenders who were jailed mostly due to drug offenses.
“Some of these people are bad dudes,” Trump said of the freed prisoners at an August campaign stop in Florida. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”
But criminal justice reform advocates say they don’t worry about a Trump presidency blocking passage of a reform measure because they believe it can pass Congress with strong support from Republicans, which would convince Trump to get behind it.
The backing already exists in Congress thanks to a list of co-sponsors who include Senate Majority Whip John Cornyn, R-Texas and Minority Whip Richard Durbin, D-Ill., as well as Senate Judiciary Committee Chairman Charles Grassley, R-Iowa.
The politics of a fierce election fight got in the way this year.
“I do not believe that the votes weren’t there,” Harris said. “I think the issue was the presidential election and timing. I think there is a lot of uncertainty about where Trump stands on these policies.”
Harris believes Republican lawmakers will be more willing to vote for criminal justice reform measures after the Nov. 8 election, beginning with the lame-duck session of Congress, which convenes on Nov. 15 and is scheduled to last into December.
While Senate Majority Leader Mitch McConnell, R-Ky., signaled it is unlikely he’ll take up criminal justice reform in the lame duck session, Harris and other advocates say they believe the House will pass several criminal justice reform measures.
A package of 11 bills has already cleared the House Judiciary Committee and they have received assurances from Speaker Paul Ryan, R-Wis., that he wants to bring reform measures to the floor, although he has made no promises on timing.
“Certainly that is what Speaker Ryan has said,” Kara Gotsch, director of strategic initiatives for the Sentencing Project, told the Examiner. “I really do believe he wants to move this legislation and is very much committed to passing criminal justice reform.”
The legislation could come in the form of a package of three measures dealing with corrections, sentencing reforms and job re-entry programs, plus consideration of some individual bills.
“I feel extremely confident we’ll get a House vote,” Harris said. “A Senate vote will be much more challenging.”
House passage with strong GOP support would boost the chances McConnell would take up reform measures in 2017, if he maintains the majority in the Senate and keeps his leadership spot.
McConnell has faced opposition from red-state Republicans including Sen. David Vitter, of Louisiana, Jeff Sessions, of Alabama, and Tom Cotton, of Arkansas.
Vitter said he opposes aspects of the reform measure because it would mostly free drug traffickers, not low-level drug users. Allowing early release for thousands of federal prisoners, Vitter said, would “handcuff our law enforcement from being able to do their job.”
But Vitter is retiring this year, and won’t be a voice of opposition from the inside of the Senate. And if Democrats win the Senate majority, it’s even more likely criminal justice reform would be on the agenda.
For now, advocates hope that House passage of some reform measures in the lame duck session would send a signal to the Senate as well as the next president.
“Hillary Clinton has already pledged her support to many of these policies,” Harris said. “If it’s Donald Trump, I think it will show him that conservatives are leading the way because the very conservative House Republicans will have already acted.”
