February 17, 2016

Criminal Justice Reform: An Election Year Opportunity for Bipartisanship?

Mark Disler

Criminal justice reform has emerged as an arena where a bipartisan agreement between Congressional Republicans and Democrats, as well as the Obama Administration, while it faces important opposition, may produce a White House signing ceremony.

Several impulses converge to produce this scenario that has often eluded Congress and the President on so many issues. Many Democrats have long believed that current mandatory minimum sentences and three-strike laws providing for lifetime imprisonment; the incarceration of nonviolent drug offenders; and inadequate attention to drug treatment and other alternative approaches to incarceration are too inflexible to produce an optimum criminal justice system. Some conservative Republicans believe there has been an over-criminalization of Federal law and agree that certain Federal sentencing policies deserve critical scrutiny for their inflexibility and at least some fine tuning.

Thus, in October 2015, the Senate Judiciary Committee favorably reported the Sentencing Reform and Corrections Act of 2015 (S. 2123) by a 15-5 vote; all five no votes came from Republicans Senators.  The bill reduces enhanced mandatory minimum sentences for prior drug felons, and narrows the offenses that triggers minimum sentences from all drug felonies to serious drug felonies, and expands the offenses that trigger enhanced minimum sentences to include violent felons. It includes other modifications to Federal sentencing policies, and it adds new mandatory minimum sentencing for interstate domestic violence and for certain export control offenses. The bill has provisions for reducing recidivism. It also has a provision allowing for the retroactive application of the Fair Sentencing Act of 2010, which reduced the disparity between the amount of crack cocaine and powder cocaine triggering certain Federal penalties.

The House Judiciary Committee has been considering several pieces of criminal justice reform legislation, including legislation similar to the Senate bill reducing certain mandatory minimums (H.R. 3713). The bill passed the Committee by voice vote. The House Judiciary Committee has also passed by voice vote a measure (H.R. 4002) which creates a mens rea standard in Federal criminal laws that do not provide for a state of mind requirement. It has also passed the Second Chance Reauthorization Act of 2015 (H.R. 3406) aimed at improving reentry programs for released inmates; the Comprehensive Justice and Mental Health Act of 2015 (H.R. 1854), to address the problem of mental illness in the criminal justice system; and the Recidivism Risk Reduction Act (H.R. 759), which places a focus on rehabilitation.


While some conservative Republican Senators support the sentencing reforms in S. 2123, others have opposed them. They believe the tough penalties put in place in the 1980s and 1990s were integral to the reduction in crime rates that are now part of the rationale for the bill’s lesser penalties and that such lessening of penalties will ultimately contribute to greater criminal activity. The retroactivity provision has also caused some concern. The five dissenting Republicans on the Senate Judiciary Committee are Senators Hatch (UT), Sessions (AL), Cruz (TX), Vitter (LA), and Perdue (GA).

Conservative opposition to the bill has spread beyond the Senate Judiciary Committee, in the face of vigorous defenses by influential proponents such as Senators Lee (UT) and Cornyn (TX). The lead story of the January 26, 2016 edition of Politico – “Cotton leads effort to sink sentencing overhaul” – cites a closed-door discussion at a Senate Republican lunch in mid-January. There, Senators Cotton (AR), Perdue, and Risch (ID) reportedly spoke against the bill. Former Federal law enforcement officials well respected among Senate Republicans have divided over the bill. Former Attorney General Michael Mukasey and former FBI Director Louis Freeh are in support, with former Attorney General John Ashcroft and former Mayor Rudolph Giuliani, a former senior Reagan Department of Justice official, in opposition.

Another complicating factor for the bill’s future course is that some Democrats are opposed to adding a mens rea requirement where the Federal criminal statutes are silent on a state of mind requirement, believing it will make some prosecutions unnecessarily more difficult, especially against corporate defendants. Senator Orrin Hatch (UT) favors a mens rea requirement and the House Judiciary Committee has approved of the concept.

But it is the division in Republican ranks that may cause Majority Leader McConnell (KY) to refrain from bringing the bill to the Senate Floor. One Presidential contender, Senator Ted Cruz, voted against the Senate bill in Committee. A Floor debate may further divide Republican ranks in an election year even if there are enough votes to obtain cloture.

There has been a recent discussion among supporters of the bill about modifying it to allay concerns of conservative critics. If such changes sway enough dissenters, Leader McConnell may decide to call up the bill for consideration on the Floor.

In the event the Leader does not bring the bill to the Floor, one of its sponsors might offer it as an amendment to other legislation. Whether Republican supporters of the bill would buck their Leader on a procedural matter, however, is unclear at best. If the Senate does not vote on sentencing reform before the election, it is a candidate to be on the list of potential bills to be considered in the lame duck session.