Political parties can find common ground with criminal justice reform

A bipartisan collection of senators is pushing a plan that addresses some of the core shortcomings of an earlier House version of the legislation that was supported by the White House.

Perhaps it’s a coincidence that a new criminal justice reform proposal has emerged in the Senate less than a week after the departure of Attorney General Jeff Sessions. But Sessions — a devout reactionary on matters of criminal justice — never met a reform effort he didn’t want to smother. As a senator, he fought against comprehensive overhaul like the Sentencing Reform and Corrections Act. As attorney general, he pursued hard-line policies stuck in the 1980s, especially when it came to low-level drug offenses. Reform advocates speak of him with the same level of affection as gun-control advocates do Wayne LaPierre, the National Rifle Association’s longtime frontman.

And now that Sessions is gone, a bipartisan collection of senators is pushing a plan that addresses some of the core shortcomings of an earlier House version of the legislation that was supported by the White House. The hope is to move the bill during the lame duck session, before the chaos of the new Congress, with its newly Democratic House majority, takes hold in January.

For this to happen, lawmakers say President Donald Trump must embrace the measure and nudge congressional Republicans to do the same. After being lobbied by Jared Kushner, his son-in-law, and various senators, Trump did just that at a White House event Wednesday, praising members of both parties for “pouring their hearts” into the compromise and declaring the bipartisan effort “a nice first step.” In this early test, the president is signaling that he indeed wants to make progress on critical issues that enjoy broad support. Lawmakers from both parties should follow suit.

A crucial feature of the Senate plan, called the First Step Act, is the inclusion of so-called front-end reforms with the goal of a more rational sentencing process. The House version, passed in May, focused solely on “back end” reforms, such as improving prison conditions and easing inmates’ re-entry into society. But tending to the existing prison population without tempering the draconian sentencing laws that caused that population to explode in recent decades is, as Sen. Chuck Grassley, R-Iowa and the chairman of the Senate Judiciary Committee, has put it, “naïve and unproductive.” That’s why reform advocates saw the House bill as worse than nothing, a cheap attempt by Congress to move past the issue without addressing one of its core problems.

The Senate bill aims to be more comprehensive. It would reduce mandatory sentencing guidelines for certain drug crimes, allow judges greater wiggle room in sentencing nonviolent drug offenders, do away with the “stacking” provision that tacks on years for the use of a firearm during the commission of a crime and, at long last, make retroactive the Fair Sentencing Act of 2010, which reduced the sentencing gap between crack and powder-cocaine offenses.

Details of the bill began making the rounds last week, and the initial reviews among advocates were solid, if not entirely glowing. Most notably, some reformers expressed disappointment that the bulk of sentencing changes would not apply retroactively, leaving thousands of inmates serving excessive terms under the old guidelines. But even the skeptical agreed that the plan was a major step forward.

The Brennan Center for Justice, a prominent voice in the reform movement and one that vigorously opposed the House’s bill, quickly came out in support of this version. “The original First Step Act would have little effect on reducing prison populations and was a concession to Jeff Sessions — one of the only people against sentencing reform,” said Inimai Chettiar, head of the center’s Justice Program. “We support this week’s Senate compromise bill because it includes several key sentencing reform provisions” carried over from the Sentencing Reform and Corrections Act.

Further fueling optimism about the legislation’s future, last week the Fraternal Order of Police issued a statement in support of the bill, specifically endorsing its sentencing reforms. This is a significant shift from February, when the group sent Trump a letter opposing previous sentencing reform efforts. The bill has also been endorsed by the International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration, the National District Attorneys Association and the National Organization of Black Law Enforcement Executives. Other groups have withdrawn previous objections.

Reform advocates expressed optimism that the yearslong impasse on this issue would at last break now that Sessions was no longer crusading against a deal — at least not in his capacity as the nation’s top law enforcement official. Matthew Whitaker, the acting attorney general, has met with Kushner and is said to be more amenable to change.

Mitch McConnell, the Senate majority leader, is expected to whip the bill on the floor. He has long pledged to hold a vote if he could find at least 60 supporters. On Wednesday, however, McConnell began to sound suspiciously like he was preparing to renege on that promise. Lawmakers from both parties ought to push to make sure he doesn’t. Republicans have a clear incentive to act now, before they lose control of the House. And if Democrats resist the temptation to let perfect be the enemy of good, they can seize this opening to make progress on an enduringly vexing challenge.