Encouraging(?) update on prospects for series of small federal sentencing reform bills

Politico has this new piece on the the prospects for (small) statutory sentencing reforms making their way through Congress soon.  Both the headline and contents of the article are generally encouraging, though one is always wise not to expect much from Congress these days.  The piece, headlined "As police reform talks sputter, bipartisan criminal justice bills advance," should be read in full by federal sentencing fans.  Here are a few highlights:

Democrats don't want to borrow a thing from Donald Trump’s four years in power, with perhaps one exception: bipartisan criminal justice reform.  As police reform talks edge closer to collapse and Democratic priorities from gun control to immigration stall, the Senate is chugging ahead on an overhaul of the U.S. criminal justice system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley....

House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills ... to deal with the mass incarceration epidemic that we have in America and the over-criminalization problem which both Democrats and Republicans recognize as a challenge that must be decisively tackled."

Whether Republicans back criminal justice reform to the extent that they did in 2018 remains to be seen. The First Step Act, which included sentencing as well as prison reform provisions, passed the Senate with 38 GOP votes but only after many conservatives got on board following a personal appeal from Trump.  A potentially stronger deterrent than a Democrat in the White House, for some Republicans weighing this year's bills, is the current increase in violent crime.  "A bigger issue is the big rise in crime in the last year,” Grassley said in an interview. “I think that’s the biggest impediment, not because Trump’s not president.”  Durbin countered that the package he is working on with Grassley, a trio of bills, focuses on non-violent crime....

So far, the Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

But criminal justice reform advocates are pushing for the inclusion of more provisions in a larger package, especially legislation that would eliminate the sentencing disparity between crack and powder cocaine offenses. The Biden administration recently backed the bill, and Durbin's committee held a hearing on it last month that featured GOP Gov. Asa Hutchinson (Ark.), a former Drug Enforcement Administration chief, and Matthew Charles, the first person released from prison after the First Step Act passed in 2018.  The road to closing that crack-cocaine sentencing disparity, a longtime progressive cause, is a hard one....

Advocates are hoping to see further movement before Congress leaves for its scheduled August recess.  However, both Grassley and Durbin suggested that could be a heavy lift, given their limited days left in session and the intense focus on moving through both the bipartisan infrastructure deal and reconciliation.  Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely....

As Congress enters the second half of the year, proponents of criminal justice reform are confident that some type of legislation will get through, given the ideological range of groups pushing for change.  “Each member, both Republican and Democrat, have very much an interest in it based upon inequities that have happened because of past tough on crime legislation,” Grassley said. “But something that really helps is when you have a broad coalition of the most liberal and the most conservative interest groups in the United States working together for it.”

Because there are many moving parts to the legislative proposals in play, and especially because of partisan divisions along with the fraught politics of crime, I fear that there could be many speed bumps on the way to congressional approval of even the small sentencing reform proposals that have so far advanced through the Senate Judiciary Committee.  But if there are enough folks on both side of the political aisle who remain eager to get something done in this space, and especially if the Biden Administration might be prepared to prioritize these issues after infrastructure discussions are resolved, I will be hopeful that we could see one or maybe more federal sentencing reform bills become law in 2021.  But I should close by repeating what I said at the outset, namely that it is always wise not to expect much from Congress these days.

Some of many prior related posts:

• Senators Durbin and Grassley introduce new "First Step Implementation Act"
• Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"
• Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 
• Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills
• "Acquitted. Then Sentenced."
• Senate Judiciary Committee advances three criminal justice and sentencing reform bills