As the debate on criminal-justice reform continues to swing in the direction of sensible reforms, new legislation introduced in Congress Thursday continued the trend. Two big justice-reform bills offered in the House and Senate signaled that the "tough on crime" era of bad policy (which may have polled well for Election Day, but filled jails) may finally be over.
It's about time. After four decades of bad federal and state policy, notably the Rockefeller Drug Laws of the 1970s and the 1994 Clinton crime bill that helped make the U.S. No. 1 in the world in incarceration, the tide is turning. Lawmakers are finally pointing in the right direction. Several are the same ones who voted for the very policies they must now work to undo (looking at you, Sen. Chuck Schumer [D-N.Y.]).
"My friend @repjohnconyers, I support sweeping reform in#SafeJusticeAct. We need big solutions to big problems. Counting on ur leadership," tweeted music mogul and businessman Russell Simmons Thursday as many in the justice-reform community considered the moment.
This moment follows what started back in June when House Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced a comprehensive justice bill, the SAFE Justice Act, after a House Overcriminalization Task Force heard testimony on all aspects of the justice system. The bill narrows the use of mandatory-minimum penalties, targeting them away from low-level nonviolent drug defendants, and supports drug and mental-health courts. It also would appropriate money for body cameras and police training. The legislation now has 50 co-sponsors, 25 Republicans and 25 Democrats, the most of any justice bill in Congress.
On Thursday a group of 10 senators, five Republicans and five Democrats offered a justice bill that creates new solitary-confinement restrictions for juveniles in the federal system and offers parole for defendants who committed crimes as minors. The Sentencing Reform and Corrections Act blends a bill by Sen. John Cornyn (R-Texas) with elements of the Second Chance Act by Rep. Danny Davis (D-Ill.) and the REDEEM Act by Sens. Rand Paul (R-Ky.) and Cory Booker (D-N.J.).
Because there was a tug of war between reform-minded senators and mandatory-minimum fans Cornyn, Sheldon Whitehouse (D-R.I.) and Chuck Grassley (R-Iowa), there are two new mandatory-minimum penalties in the legislation even though the racially biased penalty that prosecutors love is the main reason for overincarceration in the U.S.
The new mandatory penalties indicate that Grassley, a nonlawyer who is chairman of the Senate Judiciary Committee, is stuck in 1986. A full read of the legislation indicates that senators couldn't decide whether they wanted to go hard in one direction or the other. As Antonio Ginatta wrote this week for Human Rights Watch about the new bill:
Currently, if you commit a serious federal drug offense and have two prior drug felonies on your record, prosecutors can seek a mandatory-minimum life sentence. Under this new Senate bill, that minimum would shrink to 25 years. How it expands: Under the bill, it wouldn't just be drug felonies that could enhance a sentence—it could be other felonies as well.
The good news in the Senate bill is that it makes retroactive the Fair Sentencing Act of 2010, which brought the racially biased crack-powder-cocaine penalties closer. It requires presentencing information to include history of addiction and provides that nonviolent juveniles tried in federal courts can have their records expunged or sealed.
In the coming years, it will be interesting to see if older members of Congress, who seemingly have an obsession with failed mandatory-minimum policies, will be overtaken by younger members, who are increasingly opposed to them.
Comprehensive justice legislation has yet to be offered by House Judiciary Chairman Bob Goodlatte (R-Va.), who has been passive-aggressively blocking reform efforts behind the scenes.
"We are hopeful that the Senate Judiciary's actions will prompt Chairman Goodlatte and the House Judiciary to act on these critically important issues," wrote Koch Brothers Senior Vice President Mark Holden in a statement after the Senate bill was announced.
Only time will tell.