The Art of a Deal on Criminal Justice Reform

When Donald Trump ascended to the White House, many criminal justice reform advocates lost all hope that bipartisan federal sentencing and prison reform legislation would ever make it to a floor vote in either chamber of the U.S. Congress, let alone to the president’s desk. After all, then candidate Trump made law and order a major theme of his campaign, and as president he appointed Republican Senator Jeff Sessions of Alabama, the Hill’s most vocal opponent of sentencing reform, to the country’s top law enforcement post. But in one of the Beltway’s most interesting plot twists, historic criminal justice reform legislation now finds itself atop Trump’s policy agenda, and one floor vote away from his signature.

Some of us saw it coming. As I argued in the March/April 2017 issue of Foreign Affairs, embracing criminal justice reform would not contradict but would “help realize Trump’s desire to be a ‘law and order’ president.”

Data from states that have implemented reforms show lower crime and recidivism rates than in other states, so it would be perfectly consistent for the president to be tough on crime and support federal reforms. And when Trump took office, Republican governors from around the country were eager to have his ear and share their own success stories from policies that safely reduced incarcerated populations, put people back to work, and turned them away from crime for good. Their shared experiences would be incompatible with Sessions’ archaic views on justice issues, and it was only a matter of time before Trump would tire of the criticism that his attorney general’s draconian agenda would draw from the right and the left alike.

Shortly after his confirmation, Sessions predictably set about returning the Department of Justice (DOJ) to the “war on drugs” policies of the 1980s and 1990s. On May10, 2017, he reversed a directive by former Attorney General Eric Holder and ordered federal prosecutors to file maximum charges against defendants that would carry the longest possible penalties. He also sought to resurrect and expand private prisons, crack down on marijuana, and increase the use of civil asset forfeiture, a mechanism through which law enforcement can permanently take a person’s property, even when that person has never been charged with a crime. 

The fallout between Trump and Sessions created an opportunity for more forward-thinking conservatives to make the case for criminal justice reform legislation.

While Sessions was ruling DOJ with an iron fist, his boss bore the brunt of criticism from progressive and conservative groups. And in a parallel, if unrelated drama, events began to unfold that further divided the attorney general from the West Wing: Sessions recused himself from the DOJ’s investigation into Russia’s alleged interference in the 2016 presidential election and stood by silently as a special prosecutor began to explore (or exploit, depending on one’s point of view) anything linking Trump allies to Russia. The fallout between Trump and Sessions created an opportunity for more forward-thinking conservatives to make the case for criminal justice reform legislation and how it would serve Trump’s law and order vision for a safer United States. 

Jared Kushner, Trump’s senior aide and son-in-law, took the lead at the Office of American Innovation, holding bipartisan roundtable discussions on criminal justice policy, specifically focusing on measures that could help formerly incarcerated individuals find employment. Reform-minded governors were invited to join the discussion, offering success stories from expungement and so-called ban the box policies (which remove a check box on employment applications asking whether one has a criminal record), as well as from prison apprenticeship programs that teach incarcerated individuals valuable job skills. On January 11, 2018, Trump attended one of these roundtables, and Governor Matt Bevin of Kentucky was seated at his right hand, leading the discussion on the virtue of reform. Sessions attended this roundtable too. But he sat quietly across the room.

The symbolism of that moment was lost on no one. The winds were shifting.

Just over two weeks later, Trump delivered the State of the Union address, proclaiming, “This year, we will embark on reforming our prisons to help former inmates who have served their time get a second chance.”

That’s all the push Congress needed. Senate Judiciary Chair Chuck Grassley (R-Iowa) made the first move, taking up the Sentencing Reform and Corrections Act (SRCA), legislation he sponsored with Senator Richard Durbin (D-Ill.), which marries front-end sentencing reforms (decreases to mandatory minimum sentences) to back-end corrections reforms, programming for currently incarcerated individuals that has found more consensus support. And although the bill reported favorably through committee, the hearing exposed a rift between Grassley and the powerful Senate majority whip, John Cornyn (R-Texas), a previous supporter of SRCA who now opposed the bill, citing concerns that the White House might not sign anything beyond a clean corrections reform bill.

In light of this development, House bill sponsors took a different approach. Representatives Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) began circulating drafts of the Prison Reform and Redemption Act, legislation focused on the back-end corrections reforms, also called prison reforms. But if sentencing reforms divided Republicans, prison reforms divided Democrats. Some progressive advocacy groups felt the bill did not go far enough, and urged Democrats on the House Judiciary Committee to oppose the bill.

Nevertheless, negotiations to strengthen the bill continued, and Collins and Jeffries smartly rebranded their legislation the First Step Act. Acknowledging that the bill wouldn’t fix all that ails the broken U.S. justice system, the sponsors made a hard sell for improvements in the legislation, including an expansion of “good time credits,” the amount of days a person can earn off his or her sentence for good behavior. Previously, good time credits were capped at 47 days per year. The First Step Act would expand that cap to 54 days per year, and make that expansion retroactive, meaning that it could apply to all currently incarcerated individuals. The Bureau of Prisons estimated that the good time credit expansion alone would make 4,000 prisoners immediately eligible for release.

Other major provisions in the bill included vocational and rehabilitative programming, which research shows can reduce recidivism rates. Participants would accrue “earned time credits” that could lead to early release from prison to a halfway house or home confinement. Critics of the bill said that too few prisoners would have access to the programming and that only certain lower-risk inmates would be able to cash in their credits. Additionally, some groups feared that the bill’s call for expanded use of risk-assessment tools to gauge the likelihood of recidivism would have a disproportionate negative impact on people of color. Democratic members were also skeptical that a Sessions-led DOJ would implement the programming effectively.

However, the bill included plenty of attractive provisions for reformers: $50 million per year for five years to expand the programming, with any cost savings also benefiting the reentry and anti-recidivism programs; an expansion of compassionate and elderly release pilot programs; a prohibition on the shackling of pregnant women and an increase in the amount of time an incarcerated mother could spend with her newborn child. Ultimately, the package sailed through committee and achieved a landslide bipartisan vote on the House floor at 360–59, with all members of Democratic leadership voting in favor of the bill.

Back in the Senate, Senator Tom Cotton (R-Ark.) sought to water down the House bill, but instead of grandstanding to the media, his office resorted to surreptitious e-mails to advocacy groups in order to avoid falling out of the president’s good graces. But just as Trump’s support helped quiet Republican opposition, it stymied support from Democrats. And at least one Republican, Grassley, vowed that he would not support any package that excluded sentencing reform.

At a White House summit, the president didn’t take sides, and instead urged the House and Senate to “get together” and get a bill to his desk. A deal including some first-step changes to harsh sentencing laws is likely, especially given the president’s recent commutation of the life sentence of Alice Marie Johnson, a first-time nonviolent drug offender who had served 21 years in prison. Even Sessions has already said he could support reforms to “gun stacking” provisions, which enhance sentences between five years and life in prison for the possession or use of a firearm in connection with certain federal crimes, including drug trafficking offenses. Another option is to reform enhancements that double already long mandatory minimum sentences for persons with prior state felony drug convictions, which is all too common among low-level drug couriers and users. A compromise could also include a broader safety valve, which would give judges more discretion to depart from mandatory minimums when circumstances warrant. And there is no question that the movement to improve conditions for incarcerated women and mothers will factor significantly in these negotiations.

Senators Mike Lee (R-Utah) and Rand Paul (R-Ky.), both longtime supporters of reform, will likely be key brokers in any deal. Lee is trusted on both sides of the aisle and could help bring Democrats such as Durbin and Senator Cory Booker (D-N.J.) to the table, and Paul shares a backyard with the most powerful man in the Senate, Republican Senate Leader Mitch McConnell of Kentucky, who will determine if the bill even gets a vote.

And so a movement rooted in bipartisan cooperation will ultimately lay its historic legislation in the hands of McConnell, one of the most calculating political minds in American history. But in a time when more than 80 percent of Americans support prison and sentencing reforms, this legislation could be a rare political winner for both parties—which is perhaps the most unlikely plot twist of all.