Congress Eschews Conventional Wisdom on Criminal Justice Reform

The Senate Judiciary Committee seems to have thrown the election-year rulebook out the window.

Conventional Senate wisdom says similar bills should be paired together for the best chance of receiving floor time. But lawmakers from both sides of the aisle have decided the country’s criminal justice system needs repair quickly. So to avoid creating an ominously large political target, elected officials are disentangling the massive topic into three separate, and highly overlapping, threads: sentencing reform, mental health and opioid addiction.

Conventional wisdom also says that in an election year, actively avoid a gun control debate, immigration, and the perception of being soft on crime. Yet that’s exactly what a core group of lawmakers are up against in a dogged attempt to fix the country’s criminal justice system.

The bills under consideration are taking bites at the same large apple. Yet their sponsors, many of whom feel a strong emotional connection to the issue, all have tacitly agreed that teasing them apart into separate lanes gives each bill the best route to passage.

“The overlap is significant. These are all interrelated issues,” said Dr. Fred Osher, a psychiatrist and the director of health systems and services policy at the Council of State Governments Justice Center. “The bills are pushing in the same direction, but the common theme, and the thing that makes it such a bipartisan issue, is you can get good public safety outcomes as well as good public health outcomes.”

Each area has its own set of partisan issues that could prove explosive, something Senate Majority Leader Mitch McConnell is keen to avoid this year. The momentum surrounding the sentencing reform bill stalled last year, with several Republicans voicing concern that it isn’t tough enough on crime. Mental health reform carries the threat of sparking bitterly partisan gun debate. Legislation addressing the opioid addiction could create a rift between those who want to focus on border control to keep illegal drugs out of the country, and those who think the problem has more to do with doctors’ painkiller-prescribing practices.

Yet all three areas have powerful advocates. Both party whips, Sens. John Cornyn (R-Texas) and Dick Durbin (D-Ill.), are leading the sentencing reform charge. Judiciary Chairman Chuck Grassley (R-Iowa) is interested in all three. Cornyn is the lead sponsor of the mental health bill in the Judiciary Committee.

In the Health, Education, Labor and Pensions Committee, another mental health bill is a priority for both Chairman Lamar Alexander (R-Tenn.) and ranking member Patty Murray (D-Wash). House Speaker Paul Ryan (R-Wis.) has also prioritized his chamber’s broad mental health reform bill, which is similar to the one in HELP.

Sens. Kelly Ayotte (R-N.H.), Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) are all so intimately involved in the fight against opioid addiction that they all testified at a hearing on the subject in the Judiciary Committee last month.

Numbers may draw the easiest insight into the connection of the three issues. Almost 70 percent of adults in jail and more than 50 percent of adults in state prisons have a substance-abuse disorder. About 17 percent of adults entering jails and state prisons have a serious mental illness, according to data compiled by the CSG Justice Center. Almost three-fourths of those with serious mental illnesses have a co-occurring substance abuse disorder, Osher said. “That contributes to high arrest rates because of the war on drugs and our drug policies, historically,” he added.

The problems continue from there. Those with mental illnesses tend to stay in jail longer. They don’t do very well while there, and treatment options are limited. Those with mental illnesses and substance abuse disorders recidivate more often, in part because of the lack of services to help them re-enter society. There aren’t enough alternatives to incarceration for the mentally ill.

Opioid addiction is only a subset of substance abuse disorders. And both substance abuse and mental illness are present throughout society, not just in the criminal justice system. But the relationship between the three prongs that drive criminal incarceration is significant, lawmakers say.

LEGISLATIVE DOUBLE DIPPING

Sen. Sheldon Whitehouse (D-R.I.), the lead sponsor of the Comprehensive Addiction and Recovery Act, or CARA, says the different pieces of legislation compliment each other. CARA was brought up often at a Judiciary Committee hearing last week on opioids and heroin addiction.

“This issue is at the intersection of criminal justice and mental health, and more and more, we’re seeing particular law enforcement professionals who are recognizing that and calling for a more comprehensive response,” Whitehouse said after the hearing.

Whitehouse has also worked extensively on the Sentencing Reform and Corrections Act, an ambitious overhaul of sentencing law. He wrote a section of the sentencing reform bill with Cornyn that addresses how to get incarcerated people back into their communities without returning to criminal activity. One of the ways to do that is to help them deal with their addiction issues.

Whitehouse is not alone in his double dipping on legislative efforts within the committee.

Cornyn brought up all three issues at the opioid hearing. “We’re reconsidering a lot of our criminal justice policies,” he said. “I don’t know if you can draw any artificial lines between mental health issues in the criminal justice system and substance-abuse issues.”

Ayotte, who testified at the recent opioid hearing, is a co-sponsor of the Cornyn bill. Sen. Al Franken (D-Minn.) is a co-sponsor of CARA and also had his own mental health bill pass by voice vote on the Senate floor late last year. That’s just a small sampling of those championing multiple of these issues at the same time.

PLUGGING ALL THE HOLES

These are all also issues that many lawmakers have a personal or professional connection to, giving them unusually keen on-the-ground insight. Sen. Thom Tillis (R-NC), who sat through almost the entire hearing on opioids, said he worked on mental health reform as speaker of his state’s House, which is why he is passionate about the issue.

Several lawmakers said they want to make sure the bills are thoroughly examined to make sure there isn’t redundancy or holes between the three.

Lawmakers easily point to related areas. CARA has a grant program for prisoners re-entering society and another to get them treatment for opioid addiction while in prison. “A lot of the crime that’s committed, it’s committed trying to pay for an addiction,” said Sen. Rob Portman (R-Ohio).

Portman says there is a reciprocal relationship between substance abuse and mental illness. Some people self-medicate for their mental illness with drugs, and drugs can impact a person’s mental health. “I got involved in the prisoner re-entry program because of my work on the drug addiction issue,” Portman said. “They are definitely related, but we have separate legislation for each.”

Several provisions in multiple bills address alternatives to incarceration for offenders with a mental illness or an opioid addiction. There are multiple provisions dealing with law enforcement training, prevention, re-entry issues and treatment during incarceration.

SEPARATE TRACKS

There are good policy reasons for keeping mental health, opioid abuse and sentencing on separate bills, lawmakers say. Klobuchar said, for example, that while sentencing reform deals with old policies that need to be changed, the talk around opioid addiction reflects a new effort to change the way painkiller medication is prescribed.

But the separation largely comes down to strategy. It belies the conventional Senate wisdom that creating big legislative packages saves time and, therefore, makes a bill more likely to go to the floor. Combining bills, in this case, could just end up creating a larger target for their opponents.

“Each has its own set of problems. It’s very easy to see the mental bill get bogged down again with gun-related amendments, and even [Republican] supporters of criminal justice reform are beginning to tamp down on expectations for the bill as the backlash against the bill increases,” said Jim Manley, a former aide to Minority Leader Harry Reid. “Regarding the legislation relating to opioid addiction, demand for action is growing, but I am not sure I see a consensus yet on what to do.”

On the plus side, each issue has an ardent set of supporters ready to fight for its passage. “You can never really know around here who’s going to try to bollix something up, but at the moment I think there’s a path for all three,” Whitehouse said.