Senators Breathe New Life Into Criminal Justice Reform Bill, Unveil Changes

But Senate Majority Leader Mitch McConnell still needs convincing to back the revised legislation.
Sen. Dick Durbin (D-Ill.), flanked by Sen. John Cornyn (R-Texas), left, and Sen. Patrick Leahy (D-Vt.) at a meeting on Capitol Hill. The three helped author a criminal justice reform bill that now has bipartisan support.
Sen. Dick Durbin (D-Ill.), flanked by Sen. John Cornyn (R-Texas), left, and Sen. Patrick Leahy (D-Vt.) at a meeting on Capitol Hill. The three helped author a criminal justice reform bill that now has bipartisan support.

WASHINGTON -- Efforts to reform the country鈥檚 strict sentencing laws aren鈥檛 dead in Congress just yet. A bipartisan group of senior senators revealed revisions Thursday to legislation that would reduce mandatory minimum sentences for nonviolent offenders and give judges greater discretion on sentencing for low-level drug crimes.

The changes prevent violent criminals from qualifying for reduced sentencing options. However, they also expand provisions for low-level offenders, meaning more of them will benefit from the legislation and the total number of people affected will remain roughly the same as under the original bill.

The revisions also ensure that inmates convicted under the Armed Career Criminal Act will not be able to qualify for reduced sentences, while boosting mandatory sentences for offenses involving the opioid fentanyl, which is tied to drug overdoses and deaths.

As the authors intended, the tweaks convinced more Republicans to back the controversial bill. Without strong support within the GOP conference, Senate Judiciary Chair Chuck Grassley (R-Iowa) and Senate Majority Whip John Cornyn (R-Texas) won鈥檛 be able to get the legislation to the floor for a vote.

As of Thursday, four additional Republican senators joined -- Sens. Mark Kirk (Ill.), Steve Daines (Mont.), Thad Cochran (Miss.), and Dan Sullivan (Alaska) -- giving the bill 37 co-sponsors.

鈥淭his is the best chance in a generation to reform our federal drug sentencing laws.鈥

- Senate Minority Whip Dick Durbin (D-Ill.)

The task now is to continue wooing more members of the GOP conference and convince Senate Majority Leader Mitch McConnell (R-Ky.) that if he brings the package to the floor, it will have enough support to pass with 60 votes. 鈥淚 think it鈥檚 time for those discussions to start right now,鈥 Grassley said of approaching McConnell with the new text and cosponsors.

鈥淢itch McConnell has been waiting for a signal from the Republican side that they鈥檙e ready for the bill; I think today we have a signal,鈥 said Senate Minority Whip Dick Durbin (D-Ill.), who helped author the bill. 鈥淲e鈥檙e going to plead with him to put us on the agenda and try to move this as quickly as we can.鈥

Durbin stressed that the bill can pass the upper chamber with a majority of Democrats and Republicans backing it. 鈥淭his is the best chance in a generation to reform our federal drug sentencing laws,鈥 he said.

Still, the bill's fragility was lost on no one. To keep the package together, Senate Judiciary Committee leadership continued 鈥渂reathing life into it again though various tribulations,鈥 committee member Sen. Sheldon Whitehouse (D-R.I.) said.

And alterations to the bill are unlikely to win over its harshest Republican critics -- namely, Sens. Tom Cotton (Ark.), Jeff Sessions (Ala.) and Cornyn鈥檚 fellow Texan, GOP hopeful Ted Cruz, who all argue that a reduction in mandatory minimums would make communities less safe.

Cotton immediately attacked the changes, saying the 鈥revised bill only raises more serious questions.鈥

Sessions questioned whether the bill would 鈥渟end a message to judges and prosecutors that we鈥檙e not interested in people serving sentences anymore" as 鈥渢he crime rate is beginning to go up.鈥

The U.S. crime rate is at a historic low, according to a recent study by the Brennan Center for Justice, and remained steady from 2014 to 2015.

Then there鈥檚 the issue of whether the bill will contain a provision on "mens rea," or having a "guilty mind." The provision, if included, would require prosecutors to prove a defendant鈥檚 guilt by establishing that he or she consciously intended to commit the offense.

Under federal regulations and statues, this isn't required for certain offenses, such as crimes committed by corporate executives against public health or welfare. Republicans in the House badly want the "mens rea" requirement to apply to these crimes, but Democrats don鈥檛 -- making it evident that there are still deep divisions to overcome despite Thursday's bipartisan announcement.

鈥淚t鈥檚 pretty clear to me that it鈥檚 going to be in the House bill, so at some point we are going to need to deal with it,鈥 Cornyn said of the contested mens rea provision. 鈥淲e鈥檝e seen the over-criminalization of our regulatory system.鈥

鈥淥ne of the reasons it鈥檚 not in this bill is because senators like myself take exactly the opposing view,鈥 said Whitehouse. 鈥淚f we want to get into re-litigating elements of federal criminal code, then we can have that discussion separately.鈥

鈥淟ike I said, no consensus,鈥 Cornyn said.

Overall, the bill鈥檚 proponents are optimistic, pointing to recent endorsements by key groups like the National District Attorneys Association -- the largest group of prosecutors in the country.

The presidential race doesn't hurt either, according to Inimai Chettiar, director of the justice program for the Brennan Center for Justice. The need for criminal justice reform has become an important topic on the campaign trail, Chettiar said, and it's "putting more pressure on the federal government to do something."

Groups like U.S. Justice Action Network intend to keep applying that pressure, especially on senators who are up for re-election in hotly contested races this year, said Holly Harris, executive director of the advocacy organization.

Cornyn wouldn't say whether growing support for the bill means a vote could come up soon after the Senate recess next week. But if floor time opens up due to a stall in appropriations bills, he and other lawmakers are going to be ready to get the sentencing bill in there.

"We鈥檝e got some momentum,鈥 Cornyn said.

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