An (encouraging?) update on the state of federal criminal justice reform in US Senate

The New York Times has this new article, headlined "Why Some Senators Who Want a Criminal Justice Overhaul Oppose a Prisons Bill," reporting on the latest state of debate over federal statutory criminal justice reforms. The report is a bit encouraging, though also a bit worrisome.  Here are highlights:

In a private huddle on Wednesday on the Senate floor, a group of senators corralled Senator Mitch McConnell, Republican of Kentucky and the majority leader, and asked for time for a last-ditch negotiation to try to find an acceptable compromise.  Quite rightly, backers of changes in mandatory minimum laws fear that this may be the only chance for years to push a major criminal justice measure through Congress and that sentencing revisions — a more politically difficult lift — will languish if legislation aimed at reducing prison recidivism becomes law on its own.

“You don’t get many opportunities around here to do anything meaningful or substantive,” said Senator Richard J. Durbin, Democrat of Illinois and a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”

Mr. Durbin has a powerful ally in Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee. Mr. Grassley came around slowly to sentencing changes, but once he got on board, he has been committed. He warned again last week that no criminal justice measure can pass the Senate without new flexibility in mandatory minimum sentences. “It’s the right thing to do,” Mr. Grassley said in a speech.

Mr. McConnell could try to go around Mr. Grassley and advance the House measure, which passed 360 to 59.  It allocates $50 million a year over five years for job training, education and mental health and drug treatment, and provides incentives for prisoners to take part in the programs.  But Mr. Grassley has been Mr. McConnell’s dedicated partner in pushing judicial nominations through the Senate — and in blocking President Barack Obama’s Supreme Court nomination of Merrick B. Garland in 2016.  His opposition would be an embarrassing obstacle.  Not to mention that Mr. McConnell is not that keen on criminal justice legislation in general, and he would probably be reluctant to provoke a midterm election season battle over a measure for which he has little personal enthusiasm. He refused to put the broad prison and sentencing bill to a vote in the last Congress despite bipartisan support because of objections from conservatives, including Senator Jeff Sessions, who is now the attorney general.

In his meeting on the floor with senators including Mr. Durbin, Mr. Grassley and John Cornyn of Texas, the No. 2 Senate Republican and a chief sponsor of the prison bill, Mr. McConnell was noncommittal but left open the prospect of moving ahead with a bill if an agreement could be reached.  “I said, ‘Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it,’ ” Mr. McConnell said in an interview with The New York Times. But he said he was not interested in wasting the Senate’s time.

“What I’m not willing to do, just to refresh your memory from a couple of months ago, is have a freewheeling debate like we did on immigration for a whole week,” Mr. McConnell said. “We squandered a week and nothing happened. So I’m in the business of trying to make a law, not make a point.”

Mr. Durbin and other Senate backers of the sentencing changes believe they can make some relatively modest additions to the prison legislation to achieve some but not all of their goals.  They are focused on narrowing the definition of crimes that can prompt long mandatory minimum sentences for nonviolent drug crimes and on cutting the length of some of the required sentences.  They say that such changes would have a much more consequential effect on easing the United States’ mass incarceration than solely focusing on recidivism. “We might not get everything we want, but there is some sentencing reform we can achieve with this bill,” said Senator Mike Lee, Republican of Utah.

But others believe that throwing sentencing provisions into the mix will kill the prison bill, particularly with the midterm elections looming.  The sentencing changes have previously proved an impossible sell to conservative Republicans who believe the reductions in mandatory minimums make them look soft on crime.  It was that previous divide that kept Mr. McConnell from moving ahead with the more comprehensive version.

Backers of the prison bill, which is titled the First Step Act, say that Congress should take what it can get immediately and continue to press ahead on the more challenging sentencing changes. “The First Step Act is not the end,” said Representative Hakeem Jeffries, Democrat of New York and an author of the measure. “It’s not even the beginning of the end. It’s simply the end of the beginning on a journey undertaken to eradicate our mass incarceration epidemic in America.”

Those pursuing a more comprehensive approach say that the consideration of the prison bill alone could doom their efforts because it will allow lawmakers and the White House to claim they acted on criminal justice without getting at the real issue.  “It is one thing to say we are going to open the door an inch wider for those wanting to leave prison while ignoring the fact that they are flooding in through the front door,” Mr. Durbin said.

Senators now have what appears to be a slight opening to fashion a compromise they can try to sell to skeptical and resistant colleagues.  If they fail, proponents of the prison legislation will no doubt begin clamoring for action on their measure, setting up a showdown with the originators of the criminal justice system proposal over what constitutes true reform.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 

UPDATE:  This new commentary authored by Derek Cohen, headlined "Prison reform is worth fighting for in the Senate," makes the case for the FIRST STEP Act. Eugene Robinson has authored this distinct commentary making a somewhat different pitch for the bill under the headline "Prison reform bill isn't perfect, but it's a First Step."