Criminal Justice Reform Compromise Coming Soon

Senate Democrats and Republicans hope they can complete work on a major overhaul of the nation’s criminal justice system before the end of the year, as final differences between several competing measures are ironed out behind closed doors.

The Senate Judiciary Committee is “past the point of any major sticking points” on criminal justice reform legislation, said Sen. Sheldon Whitehouse (D-R.I.), one of the lead Democrats negotiating the deal.

The final version will likely combine elements of legislation offered by two bipartisan pairs. One, introduced by Whitehouse and Sen. John Cornyn (R-Texas), would divert low-risk convicts into alternative programs experts believe reduce recidivism, following a model similar to one that has sent Texas’s prison population plunging. The other, backed by Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah), would give federal judges more discretion in sentencing nonviolent drug offenders by reducing the scale of federal mandatory minimum sentencing.

Whitehouse said last week that he expects hearings to begin soon after a compromise is reached. “My hope is that this is a piece of legislation that gets out of committee this fall,” he said.

The House Judiciary Committee plans to roll out its own criminal justice reform measure, albeit one that may be more limited in scope, by the end of the month, a committee staffer said.

“Criminal justice reform is a very complicated issue,” said Rep. John Conyers (D-Mich.), the top Democrat on the panel. “There are many that don’t like some part of it and, we can understand that to be the case, for that reason, we haven’t been moving as fast as we should have been, as we’d like to.”

Conyers is one of a handful of members backing another reform proposal, the Fair Chance Act, which would prohibit federal agencies and contractors from asking about an applicant’s criminal history until after a conditional offer has been made. That proposal, known as “ban the box,” has already been adopted by 45 cities and seven states.

Because the measure specifically deals with government agencies and contractors, it will fall to the House Oversight and Government Reform Committee. Committee chairman Jason Chaffetz (R-Utah) said he is currently reviewing the bill.

“More than 90 percent of people who go to a federal prison are going to come back out,” Chaffetz told The Hill. “Are we doing the right things once they’re there and what are we doing as a nation to reduce the rate of recidivism … to rehabilitate those who are in need of some rehabilitation?”

The National Employment Law Project has formally asked the White House to adopt a ban-the-box policy through an executive order. Maurice Emsellem, the group’s program director, said the federal government should improve background check systems and adopt guidelines from the Equal Employment Opportunity Commission, which require employers to consider the age of the offense, how the offense is related to the job and the applicant’s status of rehabilitation when looking at applications.

The new takes on criminal justice reform come at a moment of heightened tensions over policing and incarceration. Groups on both the left and the right have called for overhauls; the American Civil Liberties Union this year launched a $50 million campaign to press for reforms, bankrolled by the liberal billionaire George Soros and the conservative billionaire Koch brothers.

States like Texas have dramatically changed their prison policies in efforts to cut down runaway spending on prisons, while other states like Wisconsin have altered their approach to drug overdoses in response to a growing epidemic of heroin use.

At the same time, the Black Lives Matter movement has played a role in the 2016 presidential elections. Activists have commanded the attentions of Democratic candidates, including former Secretary of State Hillary Clinton, Sen. Bernie Sanders (I-Vt.) and former Maryland Gov. Martin O’Malley. On the Republican side, candidates like Wisconsin Gov. Scott Walker has criticized the movement for encouraging a “rise in anti-police rhetoric.”

Reformers hope the attention will spur action.

“There’s a lot of opportunity – this is the moment,” Emsellem said.