WHY THE SENATE COULD NOT PASS A CRIME BILL BOTH PARTIES BACKED

Republican Senator Tom Cotton of Arkansas said the United States suffered from an “under-incarceration” problem, not from too many people being in prison

By Carl Hulse

The New York Times
September 16, 2016

WASHINGTON — A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year, consensus legislation that showed lawmakers could still rise above politics.

Then the election, Donald J. Trump’s demand for “law and order” and a series of other political calculations got in the way.

Senate Republicans divided on the wisdom of reducing federal mandatory minimum sentences. Other Republicans, unhappy that President Obama was reducing hundreds of federal prison sentences on his own, did not want to give him a legacy victory. A surge in crime in some urban areas gave opponents of the legislation a new argument.

Now, the Senate authors of the legislation say it is effectively dead.

“I do believe it is over,” said Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, who put considerable effort into difficult negotiations with Republicans to strike a compromise. “We missed an opportunity.”

What remains is a stunning display of dysfunction given the powerful forces arrayed behind legislation meant to provide a second chance for nonviolent offenders facing long prison sentences while also saving tax dollars on prison costs.

Speaker Paul D. Ryan is on board. The quarrelsome Senate Judiciary Committee passed its bill on a strong bipartisan vote with the imprimatur of Senator Charles E. Grassley of Iowa, the Republican chairman. Mr. Obama considers the issue a top priority.

The conservative Koch brothers were behind it. So was the liberal Center for American Progress and just about every advocacy group in between. Polls show the concept has broad public support. States both red and blue already have moved ahead with successful parallel programs. A cross section of law enforcement groups backs it.

Still, the legislation foundered.

“It is one of the things that makes this a frustrating place to work,” said Senator John Cornyn of Texas, the No. 2 Republican in the Senate, who became a believer in a new approach to criminal justice after seeing the benefits in his home state.

Mr. Cornyn concedes the tumult of this election year was a major factor given sharp disagreement among Senate Republicans reflected in the decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to not allow a vote on a proposal most believe would pass easily.

“I think that Senator McConnell understandably did not want to tee up an issue that split our caucus right before the 2016 election,” said Mr. Cornyn, who noted that aspects of the legislation had been misconstrued by its critics.

Presidential politics were at work as well. Mr. Trump has been campaigning on warnings of a United States at risk from sinister forces, even though violent crime is low compared with past decades. But crime surges in some urban areas have given opponents of the legislation ammunition to challenge it.

“I think he’s highlighted some of the crime surges we’ve seen, and I do think it should require proponents of the federal legislation to re-evaluate their position,” said Senator Jeff Sessions, Republican of Alabama, referring to Mr. Trump.

Mr. Sessions is both a chief ally of Mr. Trump on Capitol Hill and a leading opponent of the criminal justice legislation, along with the Republican Senators Tom Cotton of Arkansas and David Perdue of Georgia. Mr. Cotton said this year that the United States suffered from an “under-incarceration” problem, not from too many people being in prison. These critics have been supported by an association of federal prosecutors that has assailed the legislation.

Frustrated supporters of the proposal have pushed back, noting that even if violent crime is rising in some locations, the legislation is aimed at nonviolent criminals, mainly drug offenders. But the clash created a political dissonance and made some Republicans reluctant to risk their tough-on-crime image immediately before an election.

Democrats and progressive groups have been leery of an insistence by conservatives that any final legislation include a provision that could make it more difficult to prosecute white-collar crimes. Passage of a separate measure addressing the opioid crisis gave lawmakers an accomplishment to tout on the drug issue.

Despite slim chances for success this year, proponents of the criminal justice package are not surrendering.

Supporters have met with Mr. Ryan to press for a House vote on a package of three bills before lawmakers leave for the election. House backers of the legislation have been conducting briefings for lawmakers and aides in hopes of winning enough commitments to persuade Mr. Ryan to move ahead. “I think we are close,” said Holly Harris, executive director of the U.S. Justice Action Network, a leading bipartisan coalition behind the legislation. “The enemy is the clock.”

Even if the House were to act in the next week or so — a prospect top aides considered unlikely — there would be little opportunity for the Senate to follow suit, with senators eager to return to campaigning in the battle for Senate control. Neither Mr. Cornyn nor Mr. Durbin sees criminal justice legislation as the type of issue that could be sorted out in a chaotic postelection, lame-duck session, with other issues clamoring for immediate attention.

Both senators, as well as Ms. Harris, predicted that the criminal justice proposals would be back before Congress in 2017 if nothing happened this year. “This is not a partisan issue,” Mr. Cornyn said. “No matter what happens in November, I think this is still very much alive and achievable. Some things just take a while.”

But this was one thing Congress was supposed to have done by now.