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Window for Criminal Justice Reform Closing in Congress

It’s one of the few issues with bipartisan support in Washington. But for several reasons, the chances for change this year are dwindling.

John Cornyn has been hoping to take a Texas approach to crime nationwide. Currently the second-ranking Republican in the U.S. Senate, Cornyn previously served as a judge and state attorney general. Like many people, he’s been impressed with the steps his law-and-order state has taken to address issues such as sentencing and re-entry. “Texas has actually in recent years closed three prison systems, and crime has not spiked,” Cornyn said in a speech on the Senate floor last year.

Criminal justice reforms are being pushed at the federal level by actors from across the political spectrum -- from the American Civil Liberties Union to the Obama administration to the Koch brothers. It appears to be the rare issue that might not only pass in Congress, but do so with bipartisan support.

That could still happen, but chances are starting to look slim. “The prospects do seem to be getting dimmer by the day,” says Adam Gelb, public safety director with the Pew Charitable Trusts.

Cornyn co-sponsored a bill that would reduce the number of crimes subject to mandatory minimum prison sentences, while providing judges with greater discretion. It was approved on a 15-5 committee vote last fall, while a package of related legislation sailed through a House committee.

In some ways, the House package was more ambitious. But it also contained a policy change regarding mens rea, a legal formulation that in this context would have the effect of shielding corporations from prosecution in some circumstances. That’s a nonstarter for Democrats, putting bipartisan harmony at risk. “For many members, it’s increasingly their position that mens rea and sentencing reform have to be part of one package,” says Marc Mauer, executive director of the Sentencing Project. “If that’s the case, it’s going to be difficult to get it through. It’s not clear there’s a compromise position that will readily work for both sides.”

Even where there’s agreement, there’s still considerable nervousness among politicians about casting any vote that might appear to give criminals a break, especially in an election year. It’s not at all certain, given the atmosphere in Washington, that members of the two parties are willing to hold hands and take this risk together. Some conservatives such as GOP Sen. Tom Cotton of Arkansas have publicly expressed doubts about the wisdom of proceeding with a bill that would lead to the release of felons. “Unfortunately, it’s caught up in the same sort of tribalism that takes over all our policymaking in the U.S.,” says Glenn Martin, president of JustLeadershipUSA, which advocates for policies to cut incarceration rates.

In response, congressional leaders have grown more hesitant -- including Cornyn. After Cotton raised his objections in January, Cornyn, wearing his leadership hat, said, “It is not the kiss of death if you don’t do this in 2016.”

There certainly have been plenty of bills that have taken years and years to work through the maze on Capitol Hill. If federal criminal justice reform is an idea whose time has come, it will get its vote -- if not this year, then sometime in the foreseeable future. Cornyn is not the only member of Congress who’s been inspired by success stories from his home state. More than half the states have passed laws in the past decade addressing sentencing and re-entry programs. “If Congress doesn’t act,” says Gelb, “it will be swimming against a very strong tide in the states.”

In the meantime, states will likely continue on their own, but “the symbolic value of federal legislation is very important,” Mauer says. “There’s been no shortage of research showing we use corrections excessively, but it’s a political climate that’s been nervous about reform legislation.”

Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
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