Despite Bipartisan Effort, Window To Pass Sentencing Reform May Be Closing

By Carrie Johnson

Published December 31, 2015 at 5:22 PM CST

Though congressional leaders and the president have said passing sentencing reform is a priority, there are only a few months to pass legislation before lawmakers begin a series of breaks and before the presidential campaign intensifies.

It's not every day the White House and Republican leaders in Congress have a meeting of the minds.

But before he left for the holidays, the president singled out an issue he considers ripe for compromise next year. "I still want to work with Congress, both Democrats and Republicans, to reform our criminal justice system," President Obama said.

Republican House Speaker Paul Ryan has been sounding a hopeful note, too, telling an audience recently: "I do believe that there are things where we can find common ground on next; criminal justice reform is a good example."

But the window for Congress to act on plans to reduce prison terms for nonviolent drug criminals may soon be closing. And negotiations about the precise language of the proposals and the people they would help are a long way from done.

The Senate Judiciary Committee passed a bill by a vote of 15-5 that would reduce some federal mandatory minimum drug and gun sentences in October. Committee Chairman Charles Grassley, R-Iowa, recently ranked it as one of his priorities for the coming year, but the legislation still requires a vote by the full Senate.

Majority Leader Mitch McConnell, R-Ky., demurred earlier this month about the schedule for 2016.

"I haven't announced whether we're going to give it floor time or not but it obviously enjoys pretty strong bipartisan support," McConnell said. "And it's a good candidate for being dealt with next year."

There are only a few months to make that happen before lawmakers begin a series of breaks and before the presidential campaign intensifies.

"Hopefully they'll get it on the floor early in the year because when we get into a, particularly a presidential election year, a lot of other things can come in to distract Congress it seems," said Mark Holden, the general counsel for Koch Industries and one of the people pushing for changes to the justice system.

Holden says he's optimistic about the outlook. But others who have been advocating to relax the drug laws privately tell NPR they are beginning to worry nothing will happen next year.

One reason is public perceptions of crime following a spike in homicides in many cities in 2015, even though the Brennan Center for Justice recently found crime remains near record lows.

In recent testimony to Congress, FBI Director James Comey advised caution after that increase in murders. "This is worrisome," Comey said, "and it drives us to be even more thoughtful about how we change our criminal justice system."

In the House of Representatives, the visibility for sentencing legislation is cloudy.

The House Judiciary Committee passed a series of reform bills last November. One measure contains language that would raise the burden of proof for prosecutors by default in many environmental, food safety and business crimes.

The Fraternal Order of Police opposes that approach — and so do the White House and the Justice Department.

"If this proposal were to pass, it would provide cover to top level executives, which again is not something we think is in the interest of the American people," said Deputy U.S. Attorney General Sally Yates.

It's not clear whether Republican proponents in the House, like Judiciary Chairman Bob Goodlatte of Virginia and James Sensenbrenner of Wisconsin, will table that idea for now and let the other bills move ahead.

"It is imperative that criminal justice reform rein in the explosion of federal criminal law," a spokeswoman for Goodlatte told NPR in a written statement this week. And that, she said, includes raising the burden of proof for prosecutors in some cases, "to protect honest Americans from unintentional violations of the law."

For people like Mark Holden at Koch, "there's no good reason" not to reconsider the old tough-on-crime drug laws. He pointed out that states including Georgia and Texas have already tweaked their justice systems.

"And what we've seen is, in those states that public safety continues to be enhanced, crime rates continue to go down, incarceration rates fall, meaning fewer people are in prison, and states are saving a lot of money," he added.

At the Justice Department, a senior official who spoke on condition of anonymity to discuss the ongoing negotiations said leaders are committed to doing what they can to make sure a sentencing overhaul passes next year.

The official said he expects some changes to the bill that's already passed the Senate Judiciary Committee, to respond to warnings by Sen. Ted Cruz, R-Texas. Cruz, who's in the running for the GOP presidential nomination, has supported some elements of justice overhaul but he's also raised alarms about the bill's impact on public safety.

Some people who have been campaigning for years to limit mandatory minimum sentences for drug crimes say the bills in Congress already represent too much compromise — and the legislation doesn't go far enough.

They say it's worth holding out for a bill that helps more people ... even if it doesn't happen in 2016.