A bill behind bars: factors that could be delaying criminal justice reform

  • Senate Majority Leader Mitch McConnell has the votes — and support from President Trump — to pass criminal justice reform, so why is he dragging his feet?
  • One concern is that the bill may complicate the 2020 Senate map, when Republicans will be defending seats in southern states that may not support such reforms.
  • Analysts and experts also speculate that Trump is not deeply invested in criminal justice and is giving McConnell a pass so he can address other issues in the lame duck session.

Why is McConnell not acting on criminal justice reform?

Senate Majority Leader Mitch McConnell, R-Ky., has the votes to pass the First Step Act, a bill that would represent the first comprehensive package of reforms to the federal criminal justice system in a generation. Indeed, the stars have aligned in a rare way for Washington politics, as no major hurdles appear to stand in his way. Prominent Senators from both parties support the bill, House Speaker Paul Ryan, R-Wis., has promised to speed the bill through the House, and President Trump said he is waiting to sign it as soon as it crosses his desk.

Prior to the midterms, ABC reports, one supporter even said that McConnell reassured supporters of the bill that he would bring it to the Senate floor after the elections.

“Look we’re not doing it before, we’re doing it after and you’re likely to get the outcome you want because the votes are there,” ABC’s source, who spoke on the condition on anonymity, recalls McConnell saying.

This raises one of the most flummoxing questions in Washington as lawmakers enter the final weeks of the 115th Congress: why hasn’t McConnell taken a public stance on the bill, much less moved to bring it up for a vote?

One explanation is the unfavorable map that Senate Republicans face in the next election.

“Arguably, the passage of the bill may complicate the Senate map in 2020, when Republicans will be defending almost double the number of seats as Democrats, many of which are in southern states that take a hardline stance on crime, and may not support such reforms.” said Douglas Schoen, who served as a pollster for President Clinton, in an op-ed for The Hill.

The bill also threatens to further fracture Republicans at an already-divisive point in the party’s history, while distracting from other issues that Republicans, particularly McConnell, want to address in the lame duck session. Republican Senators Tom Cotton of Arkansas and John Kennedy of Louisiana continue to call for more hearings to consider the bill’s full implications before bringing it to the floor, so it’s possible that McConnell doesn’t want to roll over opposing members of his own party.

“Opponents of it — including a core of Republican senators — say it would release early from prison thousands of what they see as dangerous felons, and divide the party. They say the Senate should be focused on other issues in the next few weeks, including confirming judges, and passing the massive Farm Bill and a spending bill to avert a government shutdown by December 7,” CNN reported Sunday.

There are also hints that the Trump administration, as well as some senators, are discontent with current version of the bill. Politico reports that a bipartisan group of senators is working to change the First Step Act to gain more support from law enforcement agencies, particularly the National Sheriffs’ Association. And last week the Justice Department circulated a draft of the bill rewriting a number of its major provisions.

“The draft,” which was obtained and covered by Politico, “would still allow many federal inmates to earn time credits and obtain supervised release but would bar people convicted of violent crimes and major drug-trafficking crimes. It would also increase penalties for attacking police officers and fentanyl dealers, a key concern of law enforcement groups and senators from states hit by the opioid crisis.”

The White House quickly disowned the draft and reaffirmed the president’s endorsement of the current version of the First Step Act, writing it off as the work of a “rogue DOJ official who always hated the bill.” But its very existence still raises questions.

Finally, there are doubts about McConnell’s own feelings toward the bill, especially in light of his other legislative priorities during the lame duck session. When asked by reporters, he has been noncommittal.

“I think he is at best ambivalent and at worst opposed,” Jason Pye, vice president of legislative affairs at FreedomWorks, told The Washington Post, comparing McConnell’s previous statements that he would make time for the bill to his present inaction. Punting the bill to next year, however, is essentially declaring it dead, Pye said.

Jesselyn McCurdy, deputy director of the American Civil Liberties Union’s Washington legislative office, agreed that McConnell simply has little interest in acting on the bill.

“I don’t think he’s too jazzed about it,” she said. “I don’t think this is a priority for him, either. He’s not necessarily a supporter.”

Another reason for inertia

While the proverbial ball is certainly in McConnell’s court, a number of journalists and analysts suggest that a relatively flat endorsement from the White House may also factor into the lack of action.

Writing in New York Magazine’s Intelligencer, Ed Kilgore argues that if Trump really wanted to, he could pressure the Senate to bring the bill up for a vote:

The simple truth is that a blunt phone call from Donald Trump to McConnell insisting on a vote for the bill — and maybe additional calls to Cotton and Kennedy and other opponents, asking them to back off — would almost certainly do the trick. You have to figure that McConnell is protecting POTUS from something happening that he’s half-hearted about to begin with — as his reluctance to do anything about this legislation for the first two years of his presidency suggests.

Trump’s track record shows he is not afraid to use the bully pulpit to pressure members of his own party, but he hasn’t publicly taken McConnell to task for his slowness to act on criminal justice reform. Aside from his endorsement, in fact, he doesn’t seem to have done much at all, which stands in stark contrast to his attitude about securing resources for a border wall in Congress’ next funding bill.

According to a Politico story Monday, sources familiar with Trump’s thinking say he took up criminal justice reform at the urging of his son-in-law, White House senior advisor Jared Kushner, more as a way to distract from the GOP’s midterm losses than out of heartfelt conviction.

“His whole deal is he plays to his base, period,” Democratic strategist Mike Lux told The Hill Wednesday. “I don’t think it matters to him. If it did, he would have tried to be more bipartisan earlier in his term. And I don’t think there’s anybody who would give him any credit if he got one or two bipartisan bills passed.”

A survey of Trump’s tweets, for instance, shows little effort to pressure the Senate on criminal justice reform, and he has previously suggested that certain drug offenders who would receive leniency from the bill should get the death penalty.

Politico reported on this dynamic Monday:

Trump is hazy on the details and has privately raised some concerns about the bill. He’s also caught between different factions in his own White House, according to a Republican who speaks frequently with the president — with chief of staff John Kelly and White House advisers Kellyanne Conway and Stephen Miller reluctant to move forward and Ivanka Trump, Donald Trump Jr. and Kushner pushing for the legislation.

If Trump’s Twitter account stays silent on the matter, Kilgore says, it will be no surprise if the bill dies, and with it, any hope that Congress could follow the bipartisan movement on criminal-justice reform seen in some states.

Image Credit: “Mitch McConnell” by Gage Skidmore is licensed under CC BY-SA 2.0

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