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November 6, 2020

Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?

The question in the title of this post, which I am most eager to answer in the affirmative, results from reading this new Politico article headlined "America's new power couple: Mitch and Joe; How a Biden presidency and McConnell-led Senate might actually get along."  It still feels a bit too early, since lots of votes are still being counted, to start mapping out possible legislative agendas for the next two years.  But these passages have me thinking about the prospects for more (badly needed) federal criminal justice reforms:

During Barack Obama’s presidency, Joe Biden’s propensity for cutting deals with Mitch McConnell became a running source of aggravation for liberals. Now it will be the key to getting anything done at all.  “Some of the Democrats would say, ‘Joe always wants to make a deal. Joe always wants to make a deal.’ And I’m thinking: ‘Hell, yeah, that’s his job.’” Sen. Joe Manchin (D-W.Va.) said in an interview Thursday. “Why wouldn’t he want to make a deal?”...

McConnell and Biden may have reason to find some common ground.  Under Trump, McConnell has already succeeded in his longtime goal of reshaping the judiciary; soon his role will shift to the most powerful Republican in Washington who must also defend a razor-thin majority.  And Biden was elected running not on the most liberal agenda but in part on his ability to work with the other side, predicting “you'll see an epiphany occur among many of my Republican friends” if Trump loses...

Democratic officials are already acknowledging that their legislative ambitions are much smaller than they were a week ago, but they think there is room for agreement on things like a coronavirus aid package, infrastructure, higher education and rural broadband.  Republicans mostly agree....

The Biden team and Biden himself are thinking through how McConnell as majority leader will reshape his administration and wondering if McConnell will be a deal-maker or the kind of antagonist who said making Obama a one-term president was his top priority, according to an official close with the Biden team.

I am disappointed that this article does not list criminal justice reform as a subject matter where "there is room for agreement," but long-time readers know how criminal justice has become an arena for important bipartisan discussion and work.  And looking back at the notable criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here), there are at least a few of the listed priorities that ought to be able to garner some bipartisan support (though some are a lot more likely than others):

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive....

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

The line in the Politico article noting that "McConnell has already succeeded in his longtime goal of reshaping the judiciary" has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.

November 6, 2020 at 02:41 PM | Permalink

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