Washington Examiner reporters are exploring what 2018 has in store in a number of areas, from the White House and Congress to energy and defense. See all of our year ahead stories here.
Criminal justice reform came back with such renewed energy this year after sputtering out in Congress in 2016 that meaningful bipartisan legislation is poised for success in 2018.
In October, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced he and a bipartisan group of senators were reintroducing the Sentencing Reform and Corrections Act, which would overhaul prison sentences for nonviolent drug offenders and allow for more judicial discretion during sentencing.
The bill mirrors legislation introduced last Congress that failed after Senate Majority Leader Mitch McConnell, R-Ky., refused to bring it up.
Then days later, Sens. Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas, reintroduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act, which builds off of successful criminal justice reforms in the senators’ respective states.
The CORRECTIONS Act requires the Department of Justice and its Federal Bureau of Prisons to find a way to reduce inmate recidivism rates. It also calls for lower-risk inmates to be put in less-restrictive conditions to reduce prison costs and allow for more resources to be shifted to law enforcement. The legislation also expands recidivism-reduction programs, and requires the federal probation office to plan for re-entry of prisoners ahead of time.
“He’ll continue to advocate for sensible prison reform that better prepares low-level offenders to re-enter society and saves taxpayer dollars,” a Cornyn spokesman told the Washington Examiner.
And finally, the Mens Rea Reform Act was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Republican Sens. Mike Lee of Utah, Ted Cruz of Texas, David Perdue of Georgia and Rand Paul of Kentucky.
“Mens rea” means that a prosecutor must prove a defendant was willfully and knowingly engaging in a criminal act to convict, and many federal laws, but not all, have such requirements.
However, how mens rea is applied is not uniform for all courts and prosecutors, and the legislation would establish a “default” mens rea requirement for all federal laws.
“We remain focused on comprehensive reform of the criminal justice system from bail reform to mens rea reform to grand jury reform to indigent defense rights being realized for the more than 80 percent of those in the system that need a court-appointed lawyer to sentencing reform to prison reform to re-entry reform,” Mark Holden, senior vice president and general counsel at Koch Industries, told the Washington Examiner. “It remains to be seen what Congress will be amenable to doing. However, both Speaker [Paul] Ryan and Senators Cornyn, Grassley, Lee and [Illinois Sen. Dick] Durbin have shown that they hope to pursue reforms in the coming year.”
Holden said he is hopeful that congressional support for prison and re-entry reform will lead to more changes.
“Given the seemingly strong support for prison reform and re-entry reform, this may be a starting point for criminal justice reform in 2018 which will hopefully lead to other reforms as well,” he said.
Holden was part of a bipartisan roundtable meeting on federal prison reform at the White House in September, convened by President Trump’s son-in-law, Jared Kushner.
In the House, Rep. Doug Collins, R-Ga., introduced the Prison Reform and Redemption Act in July. He was the only House member who attended the White House meeting.
“Last year we saw both sides of the aisle and both ends of Pennsylvania Avenue hone in on prison reform as a way to strengthen the justice system,” Collins told the Washington Examiner. “In 2018, I think we’re going to see even more lawmakers come together to push forward where we have consensus, and the Prison Reform and Redemption Act captures a big part of those shared priorities at the federal level.”
The legislation would require Attorney General Jeff Sessions to develop a risk and needs assessment system for criminals, while giving them incentives to lower their risk of recidivism.
Kara Gotsch, who oversees the Sentencing Project’s federal advocacy work, told the Washington Examiner, she sees the likelihood of legislation passing as “small” and cited changes being made at the federal level in the Department of Justice under Attorney General Jeff Sessions as a cause for concern.
“Areas to watch are how Sessions’ harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed,” Gotsch said, noting the Justice Department has predicted an increase in the prison population in 2018 after four years of decline under the Obama administration.
“Also, the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence. I will be watching to see how far they extend it.”
The Justice Department says it will “continue to enforce the law” as the nation faces an opioid epidemic and rising violent crime.
“In 2016, 64,000 Americans died from drug overdoses. For two straight years, violent crime has been on the rise. Americans voted for President Trump’s brand of law and order and rejected the soft on crime policies that made it harder to prosecute drug traffickers and put dangerous criminals back on the street where our law enforcement officers face deadly risks every day,” Justice Department spokesman Ian Prior said.
States take charge
Where Congress could fail in 2018, states are there to pick up the slack.
Michigan, Florida, and Louisiana are poised to pass critical criminal justice reforms next year, according to Holden, whose Koch Industries has been pushing for comprehensive criminal justice reform under both the Obama and Trump administrations.
For example, Republican Gov. Rick Snyder of Michigan signed an 18-bill criminal justice reform package in March, and state legislators in Florida ended the year championing various bills that they say would help reduce the state’s burgeoning prison population.
A pair of measures are set to be taken up that would implement pre-arrest diversion programs statewide that Florida lawmakers say would reduce crime and incarceration rates, as well as a measure that would restore voting rights to some 1.6 million felons in the Sunshine State.
Other states such as New Jersey, Virginia, Alabama and New York elected candidates during the 2017 elections who openly support criminal justice reform, setting up the possibility for revamping at the state and local levels next year.
Phil Murphy, who was elected in a landslide to be the new governor of New Jersey, promised he would put the Garden State in a position to pass criminal justice reform.
On his campaign website, he promises changes such as creating a commission to examine mandatory minimum laws, implementing bail reform to prevent someone from being stuck behind bars for being unable to pay a fine, and the legalization of marijuana “so police can focus resources on violent crime.”
“It’s important to recognize that 2017 saw passage of criminal justice reform in red and blue states throughout the nation, in contrast to reforms stalling on the federal level,” Udi Ofer, deputy national political director at the America Civil Liberties Union said.
The ACLU worked to help pass 57 pieces of criminal justice reform legislation in 19 states, he noted.
“From sentencing reform in Louisiana and bail reform in Connecticut, to drug reform in Oregon and probation reform in Georgia, this year proved that the movement for criminal justice reform continues to be strong in the states, even under a Trump-Sessions administration,” Ofer said, adding that in 2018, the ACLU expects “these reforms to continue, and to grow, particularly around bail reform, prosecutorial reform and sentencing reform.”
For 2018, he said the ACLU is working on bail reform in 33 states including California, Georgia, Ohio and New York. In July, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced the Pretrial Integrity and Safety Act, which would encourage states to change or replace the process they use for allowing people to pay money to avoid sitting in jail until their trial.
Ofer also said he expected the issues of mass incarceration and criminal justice reform to “play a larger role in federal and state elections in 2018” following the wins of candidates supporting such reforms in 2017.
“The ACLU will be engaged in voter education in more than 1,500 races for Congress, governor, and state legislatures throughout the nation, elevating the issue of criminal justice reform in races and encouraging Americans to vote for candidates who are committed to criminal justice reform,” he said.