The Senate has unveiled a bipartisan plan, years in the making, to reform the country’s criminal-justice reform system.
The bipartisan bill announced Thursday would give judges and courts more discretion in doling out sentences for some drug offenders and offers low-risk inmates already in the system access to programs that aim to prepare them for a life beyond their cells.
“We are here today because of a lot of hard work and a desire by a lot of us here to make the Senate work,” Grassley said at a press conference announcing the bill. “It is the biggest criminal-justice reform in a generation.”
The legislation brought together an unlikely team of lawmakers who came to the table each with his own distinct motivations. For libertarian-minded Sen. Mike Lee of Utah, the exponential growth in the federal prison population put what he considers an unsustainable burden on the country’s budget and represented an overreach of federal government. For Democrats like Sen. Cory Booker of New Jersey, mandatory minimums have long been exacerbating the country’s racial inequities. For Sens. John Cornyn, the chamber’s No. 2 Republican, and Sheldon Whitehouse, a Rhode Island Democrat, a federal bill was an opportunity to implement programs that were already working back home. And for Minority Whip Dick Durbin, overhauling the justice system was a chance to finish a career-long project and deliver a major legislative victory to an outgoing Democratic president from his home state.
There was only one problem. The Judiciary Committee chairman they were working under—Sen. Chuck Grassley—had strongly come out against reducing mandatory minimums.
And the road to compromise was not easy. Committee members had competing priorities to see to the finish line. Some viewed sentencing reform as essential, while others were more focused on just ensuring they enacted a bill that reduced recidivism. Whitehouse says that in 2014, after his and Cornyn’s CORRECTIONS Act passed out of committee, he was ready to see it to the floor.
That bill allowed inmates to earn credits for early release if they maintained good behavior and enrolled in classes that prepare them for reentry. But according to Whitehouse, Durbin—the majority whip at the time—urged him to wait.
“They didn’t want our bill to go alone. They felt that it would be a good vehicle for broader sentencing reform because it had the most support. That was a little bit hard for me to get over,” Whitehouse says.
The way Whitehouse tells it, a cordial and deeply meaningful negotiation on broad reaching justice reform this year was preceded by a “frenzied blow between me and Durbin when he was stopping my bill at the end of 2014.”
Whitehouse says he accused Durbin’s staff of “being a dog in the manger,” not eating and not willing to let others eat, either.
“I thought we should have gotten our bill passed, but the upshot was that Sen. Durbin and Sen. Lee agreed to work in really good faith to get to something that would probably pass out of committee in the following Congress if we stood down,” Whitehouse says. “We sort of launched into this Congress with that new paradigm.”
Meanwhile, all of the senators involved had another major obstacle they were eyeing: convincing a reluctant Senate Judiciary Committee Chairman Chuck Grassley not to stand in the way.
In his early days as chairman, Grassley made no attempts to hide his aversion to reducing mandatory minimums. The same day in February Lee and Durbin reintroduced their Smarter Sentencing Act, a bill that cut mandatory minimums roughly in half, Grassley went to the floor in protest.
“The myth is that there are thousands of low-level drug offenders, like people smoking marijuana, in federal prison for long terms. This is supposed to mean a waste of federal tax dollars, overcrowding, and unfairness to people who should not be in prison,” Grassley said on the floor. “These myths are often used to justify lenient and, frankly, dangerous sentencing proposals in this body. One of those proposals is the so-called Smarter Sentencing Act.”
At the end of February, President Obama hosted a meeting with senators at the White House to discuss justice reform. Grassley was not even invited.
But Grassley had shown he was not opposed to all forms of justice reform. In March 2014, he voted in favor of the CORRECTIONS Act.
And Grassley was beginning to face pressure from donors and constituents back home to act on some tenet of criminal-justice reform.
In January, major GOP bankroller Charles Koch penned an op-ed in Politico targeted at making leaders in his party listen.
“We must honor the ideal of the punishment fitting the crime by allowing judges to exercise discretion,” Koch wrote.
And in April, 130 faith leaders from Iowa sent Grassley a letter calling on him to use his gavel as Judiciary Committee chairman to lead the effort in Congress to reduce mandatory minimums.
Not to mention, the death that month of Freddie Gray in Baltimore reignited racial tensions across the country between law enforcement and citizens. Advocates upped calls to bring justice reform to the forefront of the legislative agenda in Congress.
Along the way, fellow Senate Judiciary member and presidential candidate Lindsey Graham got involved. Graham, unlike others negotiating, did not have his own legislation he was working to promote. Whitehouse says that made him integral in getting Grassley to the negotiating table in the first place.
Graham’s staff was “very productive in putting the threads together,” Whitehouse says. “We began to get to a point where Chairman Grassley agreed to come and have actual negotiations with his judiciary team. That was a real breakthrough.”
By this spring, Grassley was ready.
From the outset, Durbin says Grassley and staff made it clear that the Smarter Sentencing Act was not going to be the vehicle to get a reduction in mandatory minimums. Durbin says he had to “close one door, but look for another door we could both use.”
“He is not a lawyer, but boy is he a sharp negotiator,” Durbin says of Grassley. “I cannot tell you how many hours we spent, our staff spent going back and forth trying to find some common ground.”
Durbin and Grassley first crossed paths nearly 20 years ago when they were working on bankruptcy reform. Even as they tangled from time to time, Durbin said he had “trust” that he and Grassley would find something to agree upon eventually. Durbin was no stranger to working with strange bedfellows on criminal-justice reform—he worked closely with conservative Sen. Jeff Sessions in the Senate to push through the Fair Sentencing Act in 2010, which reduced the sentencing discrepancies between crack and cocaine possession.
Through careful negotiations, Republicans and Democrats working on the criminal-justice reform bill came to a compromise on how to reduce mandatory minimums. Instead of cutting them in half, lawmakers would expand the “safety valve.”
The move would give courts and judges more room to look at more individual cases when sentencing, instead of being wedded to tight sentencing guidelines, but also would give Grassley assurances that sentences would not be reduced unilaterally.
“We had to carefully walk our way through it. There was nothing automatic about it,” Durbin said about those negotiations.
There are some reductions in mandatory minimums in the bill. For example, the so-called three-strikes punishment was changed from a life sentence to a sentence of 25 years. But, senators also agreed to increase some mandatory minimums on unlawful possession of a gun and interstate domestic violence.
Sen. Tim Scott of South Carolina, who introduced a major body-cameras bill earlier this year, said he watched as Grassley slowly evolved on reform.
“Sen. Grassley should be congratulated and commended for his efforts to be open-minded on the topic where most people said it was impossible for him to move on it,” Scott said. “The man is a thinker. He has been one of my two mentors in the Senate, and the more you talk to him, the more you appreciate and respect his desire to do the research.”
The bill, of course, hit other roadblocks along the way, even as Grassley began opening up to sentencing reforms. Lawmakers tediously grappled with who should qualify for the safety valve. Grassley wanted to ensure that drug-traffickers weren’t eligible, but drawing the line between low-level drug offenders and kingpins proved contentious. With the detailed bill, there was plenty to disagree on. The legislation did everything from confronting solitary confinement for juveniles to giving the thousands of prisoners who are still incarcerated under the old and disproportionate crack-cocaine sentencing guidelines a chance to petition the court for relief from their initial sentences.
Originally, the goal was to present the bill right before the August recess before the pending budget battles became front and center, but lawmakers were still stuck on language.
“It reached the point where in desperation, I guess it is desperation, Chuck and myself and Mike Lee sat together [in my office] and sat with our staff people for a couple of hours and just hammered away and hammered away before the August recess. And we were real close, but we didn’t really put it together until we came back,” Durbin said.
But the process also gave a new generation of senators a glimpse at how Congress can work. In an era of budget showdowns and debt-ceiling standoffs, the negotiations offered everyone from Lee to Booker a chance to practice bipartisanship.
On Wednesday, just 24 hours before the bill was expected to be rolled out, there was still a sticking point. According to Durbin, Booker still had concerns about how the legislation dealt with the criminal records of juveniles. Booker wanted more than Grassley was willing to give. So in a frantic last-minute negotiation, Durbin texted Booker to make sure he was on the floor for the 10 a.m. vote Wednesday, and he asked Grassley not to dart off.
“At the end, I had to be the go between,” Durbin says, but he offered Booker some advice throughout the process.
The final bill includes provisions that allow nonviolent young offenders to have their records expunged in certain situations.
“You introduce the bill that is your ideal outcome. You know if you have been around here for awhile that this is not how the story is going to end. You are going to have to give,” Durbin said. “I told Cory, because he is new to this scene, ‘You have got to ask yourself: ‘Alright, would you rather have nothing at this point? Would you rather walk away from what we have?’”
Now that the initial negotiations are over, the next challenge begins as the rest of the Senate weighs in. Sen. Jeff Flake, a Republican on the committee, is optimistic that the bill will get floor time even as the Senate scrambles to finish its budget work and a presidential election looms.
“It is not often you get something with this kind of broad, bipartisan appeal to it,” Flake said. “If Grassley could move on something like that, it’s a big deal. Take advantage of it.”
And advocates who once wanted more drastic reductions in mandatory minimums are also getting behind the bill.
“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, the president of Families Against Mandatory Minimums.
Some conservatives are still weary of the reductions in mandatory minimums, however.
“My impression is they probably went further than I am comfortable with,” Sessions said Wednesday just before the final bill was released.
But convincing members at large after winning over Grassley is something members working on the reform are ready and motivated to do.
“I visited federal prisons from time to time and not surprisingly they have law libraries in these prisons where inmates will take whatever free time you give them to do research. They all want to talk to me about sentencing,” Durbin says. “What I am saying is that there is a world out there—primarily African-American—where this is a big deal for families. It is a question about whether they will ever see their son again, whether their father will ever get out of prison.”
This article is from the archive of our partner National Journal.
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