Sen. Cory Booker acknowledges that the Senate's criminal justice bill is not perfect. But he doesn't hesitate to point out that "it's in my lifetime the first reversal of mass incarceration in the federal level."
The legislation contains some big compromises: It keeps many mandatory minimum sentences, does not shorten sentences for violent offenders, and adds a new mandatory sentencing enhancement for fentanyl, a powerful opioid, when it's present in trafficked heroin. Booker said that if it were only up to him, the legislation would have gone much further in rolling back punishments, and it wouldn't have added the mandatory enhancement for fentanyl.
But he argued that at the end of the day, the bill would be progress, leading to fewer people in federal prisons. It would reduce some mandatory minimum sentences — retroactively for nonviolent offenders. It would give judges the power to downgrade 10-year mandatory minimum sentences for first-time drug offenders. And it would let people currently in prison take steps to reduce the length of their sentences through special programs, as long they demonstrate they no longer pose a threat to society.
(For more on the law, Families Against Mandatory Minimums has a great rundown.)
Booker argued this is enough to make the law a net good. And as a progressive senator, he said people should get on board.
Here's my conversation with Booker, edited for length and clarity.
The criminal justice reform bill is a compromise
German Lopez: Since we last talked, the criminal justice reform bill was introduced and changed, and it's now definitely safe to say it's a compromise. How do you view the legislation now that it's closer to final form?
Cory Booker: It's never been the totality of what I wanted. It's never been as bold as I wanted it to be. But it is a significant bill in the sense that it is stopping this drift that we've seen over the last 20, 30 years toward massive hyper-incarceration. And in fact, it's the first major [federal] bill that's going to begin to unwind or move the pendulum back toward the sanity that we as a nation should be so urgently demanding.
So the compromises at the end of the day — and some people are making them out to be far worse than they actually are — don't undermine the truth of the bill. This is going to take our serious problem of over-incarceration and begin to reduce it, give judges more discretion, give people with these long, unnecessary sentences avenues to earn their time down and get more early release, and affect people as they come out of prison in a way that will empower them to be more successful. All those things are good things.
Progressives won't like some parts of the bill — and what it leaves out
GL: In terms of the bill's specifics, one of the compromises that stuck out to me, as someone who covers drug policy, is the addition of the fentanyl mandatory penalty. It just seems kind of strange to me — and I've heard this from readers, too — that a bill that's supposed to reform and move away from mandatory minimums for nonviolent drug offenses would add this kind of penalty. What's your view on it?
CB: Well, first of all, I obviously wouldn't want that in there.
But it's important for your readers to understand that it is not a mandatory minimum. There's a big difference between telling a judge that you have to give this person five years in prison or more versus what this is, which is a sentencing enhancement, which says to the judge, "You got to give this person some kind of enhancement," but the full discretion is to you. You could literally give 12 hours, one day, or more time if you want to.
So for me, what I reject is three strikes you're out, 10-year mandatory minimums that take all the discretion out of the judge's hands and put it all in the legislature's hands. That's one of the ways we've gone awry.
The last thing that's really important is that in fiscal year 2014, the US Department of Justice only prosecuted 12 [heroin cases involving fentanyl] nationwide. So this means 12 cases the judge would have the ability to add more on but would have the discretion not to do that.
So, number one, this provision affects a small amount of people. Number two, it's not a mandatory minimum. Number three, if this is one of the compromises we had to make to get the other major pulldowns of mandatory minimums that could affect thousands of people, that is a small, small compromise for the big, big gains we're going to be getting in reducing mass incarceration through the bill.
GL: What are some of the things the bill does that you don't like?
CB: I'll tell you, I fought hard to get the end of juvenile solitary confinement, and I'm upset — though I understood I had to take what we got — that it's only for juveniles that have been tried as juveniles, as opposed to a 16-year-old who's been tried as an adult. He's still eligible for that solitary confinement. That's problematic to me. It's a 16-year-old child — and, again, it's a small number, but they're still in the system. We want the ban on solitary confinement for them.
That a 16-year-old, whose brain is still under development, when they're so vulnerable, [can still be placed in solitary confinement], that's something I don't like in the bill.
We worked hard to get the expungement for juveniles, and I'm worried that that's not in the House provision right now. So that's a provision that's vulnerable.
"As soon as this one passes, I'm back to negotiating and fighting for the next bill that can go further than this"
We were able to get 10-year [mandatory minimums] and above into the judge's discretion, but we were not able to get the five-year mandatory minimums. In other words, with a 10-year, the judge can actually disregard the mandatory minimum according to the bill. That's a massive redirecting of power back toward judges. We won that for 10-year, but we did not win it for five-year mandatory minimums.
If you want more, I could obviously give you a small dissertation on the bill Cory Booker would have wanted versus that one [we got]. In my opinion, I would have liked to just have gotten rid of the mandatory minimums altogether and made our judicial system about judges, juries, prosecutors, and defendants again and not legislators who know nothing about the particular circumstances of a case. So there's a lot of things that are in the bill that aren't the things that I really want, but it is a result of a compromise.
Look, as a result of this compromise, we've gotten Sen. [Mark] Kirk, Sen. [Thad] Cochran, Sen. [Steve] Daines, and Sen. [Dan] Sullivan onto the bill, which gives us all the more chances of it getting passed.
Again, it's not my dream bill. And as soon as this one passes, I'm back to negotiating and fighting for the next bill that can go further than this. And the more guys like you, frankly, and others are awakening the public [to] what I think is one of the greatest cancers in our country, on the soul of our democracy, the more people will be pressing for other and further reforms.
But the bill could help pull back mass incarceration at the federal level — without hurting the chances of more legislation
GL: The reason I asked that is to gauge the cost-benefit analysis that you're doing in your head in terms of what makes this bill good and what would make it too bad to pass. It seems like you're saying that this pushes the ball forward a bit and reduces incarceration overall, and that makes it worth passing. But how do you gauge that?
CB: The Sentencing Commission numbers are clear: This is going to have a significant benefit to reducing incarceration. Elements of this bill will have a significant benefit.
There's some benefits that I know are huge that we can't measure, like giving judges that discretion back. We can't measure that. But I know federal judges who've spoken to the fact that they feel like their hands are tied, literally grieving that they have to put down sentences that they know are inappropriate. Well, now, for those 10-year mandatory minimums, those judges have that discretion, and I think it's going to be used a lot. Those are the things we can't measure.
But we have some good numbers on the sentencing reform.
This will move the ball on the field a good number away, and will affect thousands upon thousands of Americans who are unnecessarily, potentially even unjustly, forced to serve very, very long terms. This bill will do good.
It won't do as much good as I would want, but there's no cost-benefit analysis. The choice is this or nothing in this Congress. Nothing leaves a lot of people wallowing in prison, facing harsh judgments that are not necessary. My thinking is let's put these points on the board and commit ourselves to understanding the game's not over yet.
GL: Are you worried that passing this bill would make it harder to get more reform, since people would feel like they at least did something? Or do you think there's so much movement for reform that it will still happen?
CB: I'm a new legislator, so that question you asked me, I've asked so many veterans around this place on both sides of the Capitol. That was a common question I asked for a while — until I heard the same answer from enough senior Democrats that I stopped asking it.
So what everyone who has experience legislating has told me — Dick Durbin was the first person to spell it out for me — is that if you have a chance to pass a bill that does a lot of good, do it, because you never know what's going to happen next year, or what the sentiment is going to be next political cycle. Take what you can off the table. You may not get the whole loaf, but take the loaf that you can get — and then go back to fighting again.
I've been convinced by that argument from enough senior senators. I'll take as much as I can.
And then, by the way, the coalition that we've helped foster around this issue, it isn't going away either. Conversations with Mark Holden, with the Koch brothers, with Newt Gingrich, with others — everybody knows that there's more work to do. So I don't think you're going to get any diminution in commitment from a lot of these interest groups, advocacy groups, and justice groups.
But, again, you never know what can happen — who's going to win the presidential election, who's going to win the Senate, who will be elected in the House. So I think the right thing to do is to get a bill that may not go as far as we want to. But it's in my lifetime the first reversal of mass incarceration in the federal level.
Critics of the Senate bill didn't like that it originally helped violent offenders. But reformers say sentences for violent offenses are too long.
GL: So the bill received some big changes recently, after it was released last year, due to fears about some of the measures benefiting violent offenders. But I know that a lot of reformers and experts actually liked those portions; they think it's important to acknowledge that sentences are too long not just for drug offenders but for everyone in general. Where do you stand on that, and is it something you intend to work on moving forward?
CB: I've spoken about this publicly a lot. And I don't have unanimity in my own caucus about this. But we have an issue with violent crime in the sense that everybody makes a stark difference between violent offenders and nonviolent offenders.
But for people in the criminal justice working world, that is a gray line at best. You could have someone who's in a car, driving a boyfriend, and the boyfriend decides to jump out, pull a gun out, rob somebody, jumps back in the car, and she keeps driving — and now she's a violent criminal.
So we need to start having a better conversation about the many people who are languishing in prison for very long terms when their crime was not showing the right sense and stopping the car and exiting the car as a driver or what have you.
I still think we have disproportionate punishments for people who are so-called violent criminals but don't necessarily involve any direct actions of violence.
In addition to that, the circumstances to violent crime. I'll give you an example on an assault charge. If you and I got into a bar fight, and you punched me, and I fell backward and I hit my head, and I died, that's a horrible crime — but there are circumstances within that. Does that person deserve life imprisonment?
I just think there's a fear to have a candid conversation about proportionality when it comes to things that are labeled as violent crimes.
GL: Even for people who have done truly violent or horrible things, there are also some questions about whether they truly deserve the long sentences they're getting, especially if they can prove that they've rehabilitated or have aged out of crime. In those kinds of cases, what do you think should be done?
CB: Let's look at the statistical reality. When people are in prison, maybe they commit a crime in their 20s, and now they're in their 50s, 60s, and 70s and we're still holding them in prison; there is so much data that shows that you hit a point in your age that your chances of committing another crime have gone down dramatically.
There comes a point where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long. Is the societal cost and expenditure worth it to keep somebody who's older — higher medical costs and the like — in prison? This is a conversation this country really needs to have.
By the way, I think what you're getting at also is that we are different than most places on the planet Earth in terms of the lengths of our sentences even for violent crimes.
GL: One example that comes to mind is Norway's system, where prison terms are capped at 21 years but perhaps a judge can add a few years at the end of the term. It seems like something the US could move to.
CB: Even with our bill, what a lot of people don't understand is that people who are earning time out in our bill, they're not just getting it and then it's like, "Hey, it's time to get out." They have to go for reviews before the prosecutor, before the judge. So we're not just opening doors for people to leave without any checks whatsoever. In fact, the checks are, in my opinion, very justifiably burdensome for someone to exit prison.
So a system in which someone who serves 40 years on a sentence and is now a senior citizen, a system that says they should now be able to go through a process and the victims are notified, where prosecutors are there, where the chance for redemption is open to them, not given to them, I think we should have a system that allows a chance for redemption for people who are well past the point in their lives where they're any statistical threat to this country.
After the bill, reformers will push for more changes
GL: If this bill passes, are there any particular ideas you're thinking about specifically in terms of criminal justice reform?
CB: I don't know my communications director will want me to say this, but: Hell yes!
Let's start with the great bill to "ban the box." That's a no-brainer, in my opinion. And it has wide bipartisan support. And it would deal with this other problem that you and I haven't talked about yet: Folks who get out of prison — maybe they only serve a year, maybe they only serve a month — now they can't get a job.
There is, across the board, so much more work to be done in this area. Should this bill get done and sent to the president's office, before the ink is dry I'm going to start talking about the many more things that we have to do to bring justice back to our justice system.
GL: That's one thing the bill leaves out: addressing all these collateral consequences. You mentioned "ban the box," but it also applies to other stuff, like voting rights and welfare benefits. I know some of this is done at the state level, but still.
CB: I'm on a bill about voting rights. States may be able to do what they want on the state level, but on federal offices, heck yes that's our jurisdiction. And it's outrageous that African Americans are four times more likely to be convicted of drug crimes, even though they have no difference in committing drug crimes. And guess what, as a result of that? Black Americans are about four times more likely to lose their voting rights.
I'm already involved on legislation on a whole bunch of these issues — really good bills that I'm not giving up on fighting for. And when this sentencing bill is done, I'm going to be part of introducing new sentencing bills around mandatory minimums, because I think the momentum and history is on our side. And we can continue to chip away at this problem.