A bipartisan group of Senate negotiators has reached an agreement they believe will alleviate Republican fears that violent criminals will benefit from a bill to reform criminal sentences, a change some are calling a “Willie Horton” fix.
Horton was the felon who was furloughed in Massachusetts in 1986, after which he raped a woman in Maryland and killed her fiance. The event became part of the 1988 presidential campaign, and part of the Republican argument against Massachusetts Gov. Michael Dukakis.
“It’s a good middle-ground that people should be more comfortable with,” a GOP Senate aide told the Washington Examiner of the proposed fix to the bill.
Now, negotiators need to convince Republican senators that’s true. By all accounts, a majority of senators already favor the bill, which boasts an unusual coalition of Tea Party senators, liberal Democrats, and Senate leadership. But the majority of that support comes from Democrats, because many Republicans believe the original bill could release violent criminals, a policy change that has significant public and political repercussions.
Senate Majority Leader Mitch McConnell, R-Ky., is loathe to bring up legislation that “unifies Democrats and divides Republicans,” and so negotiators have been writing revisions aimed at recruiting Republicans without alienating Democratic proponents of the criminal justice reform package.
Senate Majority Whip John Cornyn, Senate Judiciary Committee Chairman Chuck Grassley, and Sen. Mike Lee, R-Utah, the leading GOP architects of the bill, are circulating the updated version of the legislation and a background memo, obtained by the Examiner (see below), among Republican colleagues who they see as most likely to back the legislation.
In some cases, such negotiations might still involve tucking particular minor policy provisions into the overall bill. But even with those changes, senators are treading carefully because of the political danger inherent in voting for a bill that could help a convicted criminal to get out of prison.
“Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents,” Texas Sen. Ted Cruz said last year during a Judiciary Committee hearing on the bill.
Lee, one of Cruz’s closest friends in the Senate, and other proponents of the bill say that charge was unfair, in part because the prisoners who applied for early released had to win the approval of a judge. “It is simply incorrect to say that this suddenly releases a bunch of violent criminals,” Lee replied.
Even so, they made a series of changes designed to blunt those attacks. “There is no retroactive relief for any offender who is convicted of a serious violent felony,” according to the GOP Senate aide. Perhaps most notably, the senators deleted one section of the bill that would have lowered the mandatory minimum sentences for armed career criminals and allowed the change to be applied retroactively to prisoners convicted under the previous sentencing laws.
Similarly, they tweaked a section of the bill that pertains to the mandatory minimum sentences imposed on people convicted of firearm sentences. Weldon Angelos, who was sentenced to 55 years in jail because he was convicted of selling marijuana three times while in possession of a firearm, is the poster boy for this section.
The criminal justice reformers want to make clear that a criminal must be convicted three separate times in order to trigger the mandatory minimums that resulted in Angelos’ sentence. They wrote the bill to allow Angelos and others like him to apply for early release, to the consternation of former Attorney General John Ashcroft and other law enforcement officials to denounce the original criminal justice reform bill.
“We … oppose proposals that erase those hard-fought gains and compromise public safety through lighter penalties for drug trafficking, including those in violation of gun crime statutes,” they wrote to Senate leaders in a Dec. 10, 2015, letter.
In partial deference to such critiques, negotiators changed the bill text to make clear that it “prohibits any retroactive relief for any offender convicted of any serious violent felony,” according to the background memo. That still leaves would-be reformers in the uncomfortable position of arguing that a low-level drug dealer armed with a weapon shouldn’t count as a violent offender, because the law generally reserves that title for people who commit violent acts.
Cornyn and company have had some success in wooing Republican support. Sen. Thad Cochran, R-Miss., agreed last week to back the legislation. His support might make it easier for fellow Mississippi Sen. Roger Wicker to sign on as well. Some Senate Republicans might also be drawn to the bill by the inclusion of “a mandatory sentencing enhancement for fentanyl crimes,” an addition that could be particular appealing to Sen. Kelly Ayotte, whose home state of New Hampshire is struggling to contain a heroin epidemic.
Wicker’s support might be particularly significant, because it would help ensure that southern Republicans don’t unite to sink the bill. And as National Republican Senatorial Committee chairman, Wicker’s endorsement might also signal to other Republicans that the campaign arm of the GOP Senate is comfortable with the bill.
“You’re never going to eliminate the Willie Horton type of situation, the political ads aside, of somebody coming out [of prison] and committing a crime,” the GOP Senate said. “It’s the nature of the human being. You’re never going to have 100 percent certainty, that’s never going to happen. But it would be a shame to just not ever do any sentencing reform, any criminal justice reform, because of that.”
