Criminal justice reform in Congress was always a compromise — not just between Democrats and Republicans, but between legislators who believe the US needs to end mass incarceration and those who aren't so sure.
The question was how far the bill's supporters could go in making compromises on compromises, to win over remaining skeptics, without giving in to the very myths that made mass incarceration so potent.
The Senate's criminal justice reform bill — which passed out of committee last year, but was reintroduced with substantial changes on Thursday — has tipped over into the latter.
The bill is being changed to allow fewer people convicted of violent crimes to apply for release. As a press release from Sen. Chuck Grassley (R-IA), the chair of the Senate Judiciary Committee, puts it: "The authors fine-tuned some provisions to ensure violent criminals do not benefit from reduced sentence opportunities established by the bill. It now expressly excludes offenders convicted of any serious violent felony from retroactive early release."
In exchange, it's allowing more first-time, nonviolent drug offenders to get shorter sentences.
The changes were an attempt to gain broader support from the bill among skeptics — it now has dozens of cosponsors in the Senate, and support from the National District Attorneys' Association. It does this by neutralizing the attacks opponents like Sen. Tom Cotton (R-AR) have been making; Cotton's been saying for months that the bill would result in the release of "thousands of violent felons."
But it's not clear that the bill will make it to the floor in the short time left before the end of this Congress — much less that the House and Senate will be able to agree on a reform bill.
Meanwhile, the futures of thousands of people might be at stake. And the proposed changes — modest though they might seem in the context of the legislative process — reinforce one of the myths of criminal justice that does the most damage to prospects of reform: the idea that the US should only get more lenient toward "nonviolent" offenders.
The changes would bar a few thousand prisoners from chance at early release
There are two broad trends in the changes made to the Senate bill: People convicted of violent crimes are less likely to get a chance to reduce their sentences. People convicted of drug crimes are more likely.
Under current law, if you're a "career criminal" (a phrase that's defined so vaguely the Supreme Court struck down part of its definition in June), simply possessing a gun is a crime with a 15-year minimum sentence. As originally written, the Senate bill would have dropped that minimum down to 10 years — and allowed people currently imprisoned under it to apply for reductions in their sentences. Both of those reductions, for new and current prisoners, are now being cut out of the bill entirely.
On the other hand, sentencing reductions for drug offenders are expanded. Drug prisoners are now eligible to get exempted from mandatory minimum sentences even if they have a prior misdemeanor or "minor" conviction, or if they were "minor players" in a larger drug "conspiracy." (Of course, even under the original bill, they weren't eligible for either of these "safety valves" if they engaged in any violence during their crimes.)
Other reforms are being narrowed in some ways, but broadened in others. Reduction of a 20-year minimum sentence for drugs, for example, is now not an option to any prisoner who's ever been convicted of a "serious violent felony" — but it's newly available to people with prior drug convictions if those convictions happened a long time ago.
The clearest evidence that the Senate's trying to split hairs between "violent" and "nonviolent" crime: Reforms for people who've been convicted of an extra sentence for possessing a firearm while committing a violent or drug trafficking crime.
In the worst cases, this has resulted in first-time offenders like Weldon Angelos, who was sentenced to 55 years in prison for having a gun on him during a marijuana bust.
The Senate bill reduces the length of the minimum sentence and limits when it can be used — and allows current prisoners to apply for shorter sentences under the new laws. But under the reported changes, prisoners who'd been convicted of possessing a firearm during a violent crime would no longer have the chance even to apply for a shorter sentence. Only drug prisoners would.
Together, the changes mean that thousands of people will no longer get the chance to seek early releases from prison. The United States Sentencing Commission estimated that 2,317 current prisoners would be eligible for shorter "career criminal" sentences and another 2,500 would be eligible for the extra firearm sentence — though some of those 2,500 will still be eligible.
The expansions of some reforms to benefit drug offenders will probably allow people to apply for reduced sentences (or to get shorter sentences in the future) who wouldn't have been able to.
But the real significance of the changes is what they say about the politics of sentencing reform. And what they say is nothing good.
The move would kill the best and boldest parts of criminal justice reform
You simply can't fix mass incarceration in America if you're unwilling to shorten the prison sentences of anyone who could be considered a "violent" criminal. That's especially true in state prisons, where the vast majority of US prisoners are held and where half of them are serving sentences for violent crimes.
When politicians talk about criminal justice reform, they tend to leave out this inconvenient fact. They prefer to talk about "nonviolent drug offenders" — even when they're talking about state prisoners.
The original Senate bill went beyond this. It didn't do anything too risky — the laws it proposed to change around firearms and "career criminals" are so bad that federal judges routinely complain about them.
But on an issue where states have usually led and the federal government has followed, the original Senate bill could have made a statement that states needed to dig deeper and reform sentencing for "violent offenders." Instead, it's sending the message that helping violent offenders is politically radioactive.
This doesn't satisfy people who are worried about "violent" criminals anyway
There's no indication that making these changes will allow the Senate and House to pass sentencing reform bills. There are similarities between the House and Senate bills that have been introduced so far, but they'd still need to go through a conference to combine them.
Key House members have already rejected the Senate's approach, and are instead slowly rolling out their own criminal justice reform bills.
Republicans in both chambers are engaged in a standoff with the Obama administration over a proposal to change criminal intent standards, which would mostly help people accused of "white collar" regulatory crimes. And no one wants to pass major laws on the eve of a presidential election.
Senate Majority Leader Mitch McConnell is reportedly undecided on whether to bring criminal justice reform to the floor of the Senate for a vote. The reintroduction of the bill on Thursday appeared to be an attempt to persuade him to do it — by showing that the bill was now uncontroversial enough to get lots of Senators on board, and that the main criticism of the bill's main critic (Sen. Cotton) had been neutralized.
Except that Cotton admits he thinks there's more to a "violent" offender than just being convicted of a violent crime.
This isn't as illogical as it sounds. By some estimates, as many as half of federal drug prisoners don't count as "low-level, nonviolent" drug offenders.
Many government officials, including some of the senators who worked on sentencing reform, think that "nonviolent" should exclude inmates whose crimes involved a weapon — which often just means they had weapons on them when arrested. But the Senate bill, even with the new changes, would still reduce minimum sentences for drug offenders who had a gun on them but never used it.
More importantly, though, prosecutors emphasize that many drug offenders are in prison for drug trafficking — which they consider "inherently violent." And Tom Cotton appears to be squarely in this camp. His spokesperson told the Washington Post in February:
It is naive to think that dealing cocaine and taking part in its import and distribution is ‘nonviolent,' That’s a fantasy created by the bill’s supporters and no serious federal law enforcement expert would agree with it.
If you believe that every drug dealer is violent, then you're not going to get on board with a bill reducing mandatory minimum sentences for drug crimes. You're not going to get on board with a bill that allows some drug offenders currently in prison to take classes and get jobs in exchange for "good time" credits. In short, you're not going to support the Senate bill, because that's what the Senate bill does.
Maybe these are the changes that will get McConnell to bring sentencing reform to the floor. Maybe they'll provide the momentum for the House to move faster with its own bills. But that's not at all certain. It's not nearly as certain as what's been given up.