Congress's big, bipartisan success that might be just beginning

Congress is backing criminal justice reforms in a bipartisan way, reflecting what appears to be a broader shift that began in states. 

It isn’t often that Congress reaches across party lines to pass legislation on a serious national issue, so it could be forgiven a congratulatory pat on the back.

The House and Senate are moving toward passing a bill that would change the guidelines for mandatory minimum sentencing and solitary confinement of juveniles. The effort is the product of a growing consensus that decades of "tough on crime" policies – including mandatory minimum sentences for low-level drug offenders – filled prisons across the country to the breaking point. The bill could reach President Obama’s desk this year, and he has said he will sign it, leading to celebrations of actual bipartisanship.

But as Congress moves toward a conspicuous success, the emerging question is whether the bill marks the beginning of a new era of criminal justice reform or simply a one-off. Already, there are signs that the next steps might not be so smooth. Mr. Obama is clashing with Congress over a proposal to give inmates the option to pause child support payments while they’re behind bars.

Yet, by the numbers, the inducements for further reforms on both the state and federal level appear compelling. America is the world’s leading incarcerator, with less than 5 percent of the world’s population but a quarter of the world’s prisoners. For states, prisons cost more than $50 billion a year and are the second-fastest growing part of state budgets behind Medicaid.

Indeed, states have taken the lead. Georgia recently invested $12 million in a prisoner education initiative and has reduced its prison population by 5,000 since 2013. In Texas, criminal justice reforms dating back to 2007 have led to a 46 percent drop in parolees being sent back to prison for violations, according to the Pew Charitable Trusts. And Alabama passed its own reforms earlier this year that will go into effect in January.

In Congress, the new rhetoric is robust. In the Senate, Judiciary Committee Chairman Charles Grassley (R) of Iowa hailed the Senate bill as "the biggest criminal justice reform in our generation,” and thanked six Democratic senators for their help drafting it. In the House, Rep. Robert Goodlatte (R) of Virginia said in a statement earlier this month that members of both parties “agree that criminal justice reform is not a liberal or conservative issue; it’s an American issue."

It is a sign that, despite the challenges ahead, the recent bipartisanship on criminal justice reform could endure, says Norman Reimer, executive director of the National Association of Criminal Defense Lawyers.

"I don’t think this is just a passing fancy or a fad," he says. "I do believe that we are genuinely seeing folks from across the ideological spectrum come together on a consensus that the criminal justice system can be fixed."

Shift on the right

At first, conservatives justified their support for criminal justice reform by framing it as an issue of fiscal responsibility. But Mr. Reimer says that conservatives are now voicing many other reasons to support criminal justice reform – reasons that he says could give the current bipartisan support some staying power.

For example, Right On Crime, a conservative group advocating for criminal justice reform, not only lists fiscal responsibility as part of the conservative case for reform, but also things like public safety, victim support, family preservation, and free enterprise.

"When you look at the language coming out of some of these spokespersons from the right, it’s talking about justice and a better society," he says. "It’s not just about money."

And the coalition of interest groups getting behind criminal justice reform is strikingly diverse.

A conference of the topic being held in New Orleans in early November will include speakers ranging from conservative antitax icon Grover Norquist to a senior member of the American Civil Liberties Union. The conference is also being organized by the Charles Koch Institute, founded by the same conservative multibillionaire who was recently described by Politico as "the Rasputin of the American Right."

"It’s like a who’s-who from the left and the right," says Reimer, who is also speaking at the event.

But more difficult conversations lie ahead, some say.

The 'tough questions' ahead

The congressional effort, while a sign of progress, isn't as tectonic as it is claimed to be, writes Shane Bauer of Mother Jones. The Senate and House bills, which are expected to be melded into one bill before being sent to Obama, aren’t eliminating mandatory minimum sentences, but merely reducing them for some offenses. Mr. Bauer also notes that the bills only address the federal prison system, which holds just 13 percent of the national prison population.

At some point, reformers will have to answer “the tough questions,” like how long violent offenders should be incarcerated, adds Carrie Pettus-Davis, an assistant professor at the Brown School of Social Work at Washington University in St. Louis.

"When we start grappling with those questions – which will be how we truly reform our criminal justice system – that’s when we might see some deviations," she says.

As evidence, she points to the debate over whether to give inmates the option to pause child support payments. Addressing how incarceration affects the families of inmates will be only one major stumbling block, Professor Pettus-Davis says. Another will be the racial and economic disparities that exist in the criminal justice system.

"Those are some really tough questions, because [they force] people to face human rights and civil rights ideas that are uncomfortable to grapple with," says Pettus-Davis.

Texas' example

Criminal justice reform could also be derailed, experts say, if a significant number of the inmates being released as a result of the bills get rearrested, or if violent crime rates in some cities around the country maintain their upward trajectory.

But prisoner releases could also have the opposite effect, with successes providing further evidence that criminal justice reform can work, says Lance Lemmonds, deputy director of the Coalition for Public Safety. For instance, even as Texas has undertaken significant reforms, the state’s overall crime rate has dropped to its lowest level since 1968, according to the Pew Charitable Trusts. 

"We’ll see what happens, but we expect similar results to what we’ve seen in Texas and Georgia," says Mr. Lemmonds.

Given the looming election year and the overall complexity of criminal justice reform, most experts say the current congressional bills will be the last major criminal justice reform legislation for a while. But one key player, Representative Goodlatte, said earlier this month that his committee will roll out more criminal justice reform bills over the coming weeks.

"Our entire society has awakened to the reality that we are the leading incarcerator in the world," says Reimer.