The Bipartisan Push To Unwind Mass Incarceration Has A Terribly Long Way To Go

A watered-down bill would reduce some mandatory sentences but make only a dent in America's prison population.

WASHINGTON - A new bipartisan overhaul of the criminal justice system would slightly reduce sentences for a small number of prisoners who meet strict criteria laid out in the package.

Because it will not eliminate mandatory minimum sentences, as some advocates had hoped, the reform will likely do little to dent mass incarceration in the United States, though advocates are hailing it as a major step in the right direction.

The watered-down proposal is the result of compromises needed to win the support of Judiciary Committee Chairman Chuck Grassley (R-Iowa), a longtime hardliner on criminal justice policy, according to one source close to Grassley and another who cosponsored the legislation.

"We didn’t start off in the best of circumstances. Sen. Grassley was very skeptical, and said so publicly," Sen. Dick Durbin (D-Ill.) said Thursday. "There are parts of this bill I would have written a lot differently. There are parts of this bill he would have written a lot differently."

"This proposal is a step forward, but I advised groups working on the issue for more than a year that this is the most they will get with the strategy they were using," said one person familiar with Grassley's thinking on the issue. The person argued that without showing Grassley that Iowans had moved on this issue and were being impacted by it, he'd be hard to turn around.

The proposal makes modest reforms to draconian mandatory minimum sentences for drug offenders. It would reform the controversial “three strikes” law, making it so that offenders with two prior drug or violent felonies do not automatically face a life sentence on their third offense, but 25 years. Right now, any prior drug felony can trigger enhanced minimum sentences, but the bill would limit this to “serious” drug and violent felonies. This part of the proposal can be applied retroactively.

The package also attempts to deal with "stacking," which can pile consecutive 25 year sentences on a defendant for different parts of the same crime. A Utah man famously had two 25-year sentences stacked on top of each other, and enhanced with another five, to wind up with a 55-year penalty for selling weed. In the proposed legislation, those minimums would be reduced from 25 to 15 years and could no longer be stacked. Fifteen years for such an offense is better than 55, but also signals just how far the system still has to go.

The package expands the scenarios in which judges can issue sentences below the mandatory minimum. But the exceptions are very narrow, mainly applying to drug offenders with non-serious criminal records who didn't play leadership roles in the offenses. One new safety valve, for example, still requires offenders to meet stringent criteria, including not being “a member of a continuing criminal enterprise,” cooperating with the government and not using a firearm.

The compromise finally came together Wednesday, Durbin said. "Yesterday morning on the floor of the Senate, Cory Booker, Chuck Grassley and I stood together and had the last handshake on the last provision," he said. Grassley was under pressure at home from the Des Moines Register, faced a grassroots push to moderate his hardline stand and was the subject of intense lobbying by his colleagues. The top Democrat on the committee, Sen. Pat Leahy of Vermont, said Thursday he agreed to get on board when many of the reforms were made retroactive.

Sen. John Cornyn (R-Texas), a former prosecutor and the No. 2 Republican in the chamber, is a cosponsor of the bill and had long pushed for it to address mandatory minimums in a more robust way. Rolling back such penalties had broad bipartisan support, yet at the insistence of Grassley, the final bill even includes new mandatory minimums for domestic violence and arms trading offenses.

The new minimums are a window into how mass incarceration grew to such heights in the first place. No politician wants to oppose tough penalties for spousal abuse or arms dealing; one year leads to another and before long, two million people are behind bars. Grassley said at a press conference Thursday that those two new minimums were important to him.

"It looks like a relatively small mouse to come out of such a big mountain, but it's something," said Mark Kleiman, a professor of public policy. "The debate in Washington has nothing to do with reality. Although it's not nothing: The federal system alone would be the biggest or second biggest state system, so it's not unimportant."

The problem for Congress is that while it has authority over federal prisons and sentencing, the majority of those locked up are in state and local confinement. The federal prison population differs in significant ways from state prisoners and has a higher concentration of drug offenders and nonviolent criminals. Of the roughly 205,000 federal inmates, nearly half are in for drug offenses and another 1 in 10 are locked up for immigration offenses. That gives the legislation a better chance to help the population it applies to, but if it is copied at the state level, it will have diminished impact. "Most of this federal stuff matters as it influences state policy," said Kleiman. "In the federal system, nonviolent drug offenders actually matter. At the state level they simply don't."

The compromise, however, may have been required to get something done. Obtaining Grassley's support gives the package a strong chance of moving through the Senate. Its prospects in the House are uncertain but it's not implausible that the package could become law.

The compromise is also a consequence of the sustained rhetoric around mass incarceration. While the language around criminal justice reform has gravitated toward "nonviolent drug offenders," the overwhelming majority of people in prisons and jails across the country are there for offenses categorized as violent that would disqualify them from relief under the bill. Mass incarceration is not primarily driven by nonviolent drug convictions, but rather by extremely long mandatory sentences doled out for crimes classified as violent. Often, there is an interplay between the two: a drug charge that is accompanied by a gun charge adds many years to a sentence. Few politicians, organizations or pundits are willing to stand up for people in prison for violent crimes, including crimes classified as violent that didn't result in any physical harm to another individual, such as gun possession, burglary or other property crimes.

"Sen. Grassley has long said that he was willing to have a conversation with his colleagues on a thoughtful approach to sentencing reform that didn't simply slice sentences across the board. His colleagues took him up on that offer. Grassley led months of bipartisan negotiations to get to this point," said Taylor Foy, a spokesman for Grassley.

Chairman Grassley was born in 1933 and was elected to the Senate in 1980. That amount of seniority may make him ill-equipped to adapt to the new climate around criminal justice, but it gives him outsized power in the Senate. In an unfortunate twist of fate for the millions of people incarcerated, Grassley ought not even be chairman of the committee that oversees criminal justice. By seniority, he could have taken the gavel of the more powerful Finance Committee. But had he done so, Sen. Orrin Hatch (R-Utah), himself born in 1934, wouldn't have been able to chair any of the Senate's significant committees. To help out Hatch, Grassley took one for the team and agreed to chair Judiciary. For that gentlemanly act, the criminal justice reform bill was dramatically weakened.

"Obviously, I would have liked to have gone further but this is a negotiation and the progress that we have in this bill is extraordinarily significant," Sen. Cory Booker (D-N.J.) told The Huffington Post.

Booker said he would like to return a lot more judicial discretion, perhaps eliminating some of the mandatory minimums or at least reducing them to a greater extent. But he said the proposal is nonetheless a “pretty significant demonstration” of Grassley’s commitment to reform. "I feel a lot of gratitude towards him today."

“This bill isn’t the full repeal of mandatory minimum sentences we ultimately need, but it is a substantial improvement over the status quo and will fix some of the worst injustices created by federal mandatory sentences,” said Julie Stewart, president of Families Against Mandatory Minimums, in a statement.

Kleiman, though, said that a provision of the bill that would allow prisoners to serve some of their pre-release time in alternative forms of custody had the potential to revamp the system. He has previously proposed a graduated re-entry system, whereby prisoners would slowly be given and earn new freedoms. Massachusetts, he notes, currently sends prisoners directly from a super max to the street when their term ends. "Right now we push the guy out the gate with 40 bucks and a bus ticket and say good luck to you and the Red Sox," he said. "It's insane."

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