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Congress is closer than ever to enacting justice reform

08/05/2015

The House of Representatives has already adjourned for the August recess. The Senate is expected to finish up its business this week before members leave Washington. The recess will not be a quiet one for members. They are gearing up for several tricky legislative initiatives and battles when they return in September, among which will be justice reform.

The momentum for justice reform has been building over the last several months, and it appears as though the will exists to get something big done before the end of the year. Most of the discussions revolve around some kind of front-end sentencing reform, including the "safety valve" exception to mandatory minimum sentences for nonviolent offenders, and back-end reentry reform for offenders who, through rehabilitative programs, have demonstrated that they are at low-risk of committing another crime.

Currently, there is a crisis in the federal justice system, and it stems from costly sentencing policies that have placed big government in the courtroom and a prison system that warehouses prisoners rather than rehabilitating them. The federal prison population grew by nearly 800 percent between 1980 and 2013. Today, there are some 208,000 prisoners in federal prisons, 62 percent of whom are drug offenders with little to no criminal histories.

The Federal Bureau of Prisons, which supervises these inmates, has seen its budget nearly double since FY 2000, and it currently represents a quarter of all Justice Department appropriations. In fact, the Bureau of Prisons has grown at twice the rate of any other agency that falls under the Justice Department's jurisdiction.

Conservative governors in Republican states have shown that innovative programming -- including drug treatment, education, and work training -- can rehabilitate offenders so they can become productive members of society. The policies implemented in states such as Georgia and Texas have helped reduce repeat offender and crime rates, while saving taxpayers money.

Seeing the successes of the states, many members of Congress from both chambers have introduced legislation, or been involved in negotiations, to bring many of these justice reforms to the federal level. They hope to replicate the results of these fiscally conservative ideas from the states into a responsible federal plan that saves money and disrupts the cycle of crime.

A group of seven members of the Senate Judiciary Committee, led by Chairman Chuck Grassley (R-Iowa), have been hammering out a deal that would include reentry reforms proposed in the CORRECTIONS Act, introduced by Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.), and at least some mandatory minimum sentencing reforms offered in the Smarter Sentencing Act, sponsored by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.). In February, FreedomWorks released a letter of support for the Smarter Sentencing Act.

Six months ago, any justice reform deal that included mandatory minimum sentencing reforms, a form of big government in the courtroom, would have been a non-starter in the Senate. Grassley was strongly opposed to altering these sentences in any way. Not long after the Smarter Sentencing Act was introduced, the Iowa Republican, who served in the Senate when these costly sentencing policies were enacted in the 1980s and 1990s, spoke against the bill from the floor of the upper chamber. Apparently, he was given bad information about what the bill would do.

Grassley has since softened his tone and expressed an open mind on justice reform. This can be attributed to pressure applied by reform-minded advocates in his home state, and the work of his colleagues behind the scene. Plus, in a town where there is frequent contention, justice reform is one of few issues that Congress can move this year.

The details of the deal have not been released, but the National Journal recently reported that "Grassley could be just days away from unveiling" the reform package. Most likely, because of the August recess, the actual text of the legislation will not be released until the session resumes next month. Of course, any justice reform bill up for consideration must show cost-savings, so that will play a big role in determining whether FreedomWorks can support the Senate deal.

Some members of the House are also working on reform. In June, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the SAFE Justice Act, a much more comprehensive justice reform bill that would bring front-end sentencing and back-end reentry reforms. The bill also tackles over-criminalization of federal law and over-federalization in criminal law.

Sensenbrenner and Scott have been selling the bill to their colleagues, adding as many cosponsors as they can to show bipartisan support. There is no cost analysis as of yet, at least not one released publicly, but, during a recent podcast with the Cato Institute's Caleb Brown, Sensenbrenner ballparked the savings from the SAFE Justice Act at approximately $2 billion.

Surprisingly, in July, Speaker John Boehner (R-Ohio) offered his support for the SAFE Justice Act, telling reporters that he hopes the bill comes to the floor for a vote. But even if the bill were to clear the House Judiciary Committee and pass the full lower chamber, it may be dead on arrival in the Senate, where Grassley has gone as far as he is willing to go.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) will roll out their own justice reform bill in September, according to The Hill. Much like the looming Senate deal, the details of the Goodlatte and Conyers effort have not been released, but what the two propose could be the fruits of an initiative launched in June to review justice reform bills.

"Earlier this summer, the House Judiciary Committee listened to House Members’ ideas and proposals for criminal justice reform. Following the Committee’s listening session, we are working together over the August break with the goal of crafting bipartisan solutions to address the issues facing our criminal justice system," Goodlatte and Conyers said in a joint release. "Together, we will pursue responsible, common sense criminal justice reforms to make sure our federal laws and regulations effectively and appropriately punish wrongdoers, protect individual freedom, safeguard civil liberties, work as efficiently and fairly as possible, do not impede state efforts, and do not waste taxpayer dollars."

"We plan to introduce bipartisan legislation this September so that our criminal justice system better achieves justice and reflects core American values," they added. Whether Goodlatte and Conyers will incorporate provisions or ideas from the SAFE Justice Act into their proposal, obviously, remains to be seen.

There are certainly a lot of irons in the fire, but that is a blessing because it shows that members of Congress are serious about getting something big done on justice reform this year. Of course, this is only the beginning. There are other sensible and appropriate steps that Congress should consider -- such as mens rea, the "guilty mind" requirement, and long overdue civil asset forfeiture reforms. These reforms have been discussed by those leading this effort on Capitol Hill, but they have been sidelined, at least for now.

FreedomWorks will continue to watch what is happening in Congress on these issues. We hope that whatever bill Congress passes will restore common sense to sentencing and bring substantive rehabilitative programming to the federal prison system. These positive efforts will, like in the states, make communities safer. Importantly, lawmakers must be cost-conscience. While addressing the problems with sentencing and the prison system are incredibly important, reducing costs is a necessity that cannot be ignored.