Though it’s a fairly modest measure with exceedingly broad support, the criminal-justice bill passed by the Senate on Tuesday evening barely made it out alive. Its near-demise illustrates how extreme partisanship and the permanent campaign have made reform legislation require a perfect storm in Washington.
“It has died a thousand times and had life breathed back into it a thousand and one times,” said Brett Tolman, a Republican who was Utah’s top federal prosecutor in the late 2000s but has advocated for many of the bill’s changes since 2010.
When it was finally called up, the First Step Act sailed through the Senate, with 87 senators in favor and just 12 Republicans opposed. The bill would trim mandatory minimum sentences and expand credit for inmates who participate in programs meant to prepare them for life after prison. It prohibits the shackling of female inmates during childbirth and bans virtually all solitary confinement for juveniles.
Federal inmates participating in “evidence-based recidivism-reduction programs” would be able to earn credit to leave prison more quickly, and the sentencing reforms would trim future mandatory minimum sentences for drug crimes and let prisoners sentenced under the old crack-cocaine rules petition for a reduced sentence in line with the recent reforms. It would also allow some inmates to serve their sentences under house arrest or in halfway houses, and those incarcerated would be sent to prisons within 500 miles of their families.
A House vote is expected Thursday, and President Donald Trump tweeted that he was looking forward to signing the legislation, which he said would “keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved.”
“It’s the most sweeping reform in a generation,” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums. “It’s also very modest … If people think we are even close to scratching the surface of the inequities in the federal criminal-justice system, they’re kidding themselves.” The bill, in fact, would affect only the federal prison population of about 180,000, which accounts for less than one-tenth of the more than 2 million inmates nationwide, a sum that makes the United States the world leader in incarceration rates. And as recently as a week and a half ago, Senate Majority Leader Mitch McConnell was saying there wasn’t enough time to consider the bill, which was “extremely divisive inside the Senate Republican conference.”
Many elements of the First Step Act floated around Capitol Hill for the past decade as concern grew on both the left and the right about the personal and fiscal costs of mass incarceration, a legacy of the war on drugs and the lock-’em-up approach of the 1970s and 1980s. In 2010, Congress passed a bipartisan law reducing the crack-cocaine sentencing disparity that disproportionately affected African Americans, but further legislative reforms sputtered after that, leading Barack Obama to use his commutation power broadly in the last years of his presidency.
The first condition for this week’s vote was one-party control of the federal government, which facilitates cooperation among the president and the chambers of Congress. Parties don’t want a president from the other side of the aisle to claim credit, and base voters punish incumbents seen as too conciliatory. Congressional leaders will do more to help a president of their own party.
That’s why unified control of government now seems a prerequisite for substantive change; Obamacare was passed without a single Republican vote, and last year’s tax cuts were enacted without any Democratic support. Once the GOP reclaimed the House in 2011, Obama’s legislative agenda nearly ground to a halt. Next month, Trump will see the end of his unified-government honeymoon.
Efforts to pass legislation similar to this year’s bill died in 2015 without a vote in the Senate, partly because McConnell did not want to give President Obama a legislative victory. This year, advocates had to overcome some Democratic resistance to giving President Trump a bipartisan win. “They were able to look past giving Trump a victory,” Tolman said. “They rolled up their sleeves and dug in.”
The bill’s passage also depended on timing, in at least two ways. First, if the First Step Act had not passed in this brief lame-duck session, advocates expected their window of opportunity to close. “Saying that we’ll do it next year is tantamount to saying this just isn’t going to get done,” Senator Mike Lee, the libertarian-leaning Utah Republican, told The Wall Street Journal last month. A Democratic House majority might have demanded more than Trump was willing to accept, leading Republicans to withdraw their support, and the new Senate would have been slightly less favorable.
The lame-duck session also offered the best chance to get Republicans to support criminal-justice reform that primary opponents could use to tar incumbents as “soft on crime.” Members of Congress may have always resisted risky votes close to an election, but the inexorable creep of the permanent campaign has broadened the definition of “close to an election” to cover more and more of the 24 months between balloting. Rank-and-file members ask the leadership to shield them from votes likely to encourage a primary challenger or demotivate their core supporters, as some Republicans had been pressuring McConnell to kill the bill.
It used to be that odd-numbered years offered the best chance for significant legislation, while campaigns dominated election years; now the time for ambition may be the few weeks immediately after elections, when voters are paying the least attention and politicians have the longest amount of time possible to let unpopular votes fade into the past.
Trump’s support gave the bill the boost it needed to get back on track after McConnell’s dilatory tactics. The “Nixon to China” factor comes into play whenever a president with a strong reputation on one side of an issue oversees a policy shift in the opposite direction. Nixon was known as a hawk who was tough on communism, so he had the credibility to build a relationship with China’s communist leaders. Trump had spent the fall blasting Democrats as soft on crime (as well as immigration, trade, and a litany of other issues), but soon after last month’s midterm elections, he announced his endorsement of the prison-reform measure.
“Trump wasn’t a leader in the last couple of years, but in the last couple of months it did help,” said Marc Mauer, director of the advocacy group the Sentencing Project. Tolman, the former prosecutor, said the president’s backing helped persuade more Republicans to support the First Step Act, since GOP primary opponents will now have a harder time casting supporters as bleeding hearts. Trump tweeted his desire for McConnell to bring the bill to the floor.
Finally, there was the Jared factor: The real Trump-administration power behind the bill came from Trump’s adviser and son-in-law, Jared Kushner, who made prison reform a priority after seeing his developer father as a federal inmate for tax evasion and illegal campaign contributions. The pressure, along with increasing support among GOP senators, helped persuade McConnell to reverse course and schedule a vote.
The First Step Act does mark a significant bipartisan accomplishment, but it came together only amid a rare alignment of conditions, structural and political. It’s likely to remain the exception to the rule of partisan gridlock. The forecast doesn’t call for another perfect storm anytime soon.
This article is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.
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