Criminal justice reform is ripe for bipartisan achievement
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Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus. They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off.

Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike LeeMichael (Mike) Shumway LeeOvernight Health Care: Trump officials to allow work requirements for Medicaid GOP senator: CBO moving the goalposts on ObamaCare mandate Cornyn: Senate GOP tax plan to be released Thursday MORE (R-Utah) agree that the current system is broken. It’s not hard to see why. Our criminal justice system is the largest and most expensive in the world. Roughly two million individuals are incarcerated in the United States. Yet about half of all federal prisoners are non-violent drug offenders for whom prison may not be the most effective solution.

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But for all the people we lock in prison, and all the money we spend to keep them there, we have created a system that too often mandates punishments that in no way fit the crime, prevents people from leading productive lives, and makes communities less safe in the process.   

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform – and the reasons they have a viable path to becoming law.

  • First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses.

Reason it could pass: The case for curtailing prosecutors’ power is neither Republican, nor Democrat; it’s a matter of justice. That’s why politicians as far right as Sen. Ted CruzRafael (Ted) Edward CruzOvernight Finance: GOP criticism of tax bill grows, but few no votes | Highlights from day two of markup | House votes to overturn joint-employer rule | Senate panel approves North Korean banking sanctions GOP criticism of tax bill grows, but few ready to vote against it Anti-gay marriage county clerk Kim Davis to seek reelection in Kentucky MORE and as far left as Hon. Janet Napolitano have called for such reforms as an essential step to making sure every individual is treated fairly according to the law, rather than a given prosecutor’s agenda. It’s also why groups as diverse as the American Conservative Union and the American Civil Liberties Union have supported prosecutorial reform. With powerful groups on both sides of the aisle advocating for reform, lawmakers are likely to look carefully at the issue.

  • Second, we must protect every citizens’ Sixth Amendment rights. When it comes to federal cases, Congress should ensure that all individuals – regardless of income level – have an adequate chance to retain counsel before they appear in court. It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense.

Reason it could pass: Lawmakers have a duty to protect the inalienable rights enumerated in the Bill of Rights, which includes the right to representation. Failing to do so creates a constitutional crisis and risks creating a conflict of interest within government. Though improving individuals’ representation has often been an issue associated with the left, in recent years a number of right-leaning leaders have championed reforms, especially as it’s become apparent that some defendants are woefully incompetent. Senate Judiciary Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleySenators push mandatory sexual harassment training for members, staff Senate panel to hold hearing on bump stocks, background checks Senate panel to hold hearing on bump stocks MORE (R-Iowa) held a hearing on the subject last year, and other Republican members have recognized the need for reform.

  • Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.

Reason it could pass: There was broad bi-partisan support for several sentencing-focused bills last Congress, many of which incorporated elements of the popular Smarter Sentencing Act and state reforms that have already proven successful. Some reforms have already garnered enough support to become law, such as the 2010 Fair Sentencing Act, which Attorney General nominee Sessions co-sponsored.

  • Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars.

Reason it could pass: The Sentencing Reform and Corrections Act also includes rehabilitation reforms, which were widely supported.

  • Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives. Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs. Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so. Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came.

Reason it could pass: In 2016, the House overwhelmingly passed a bill that did make some modest reforms to the treatment of juveniles, and the Senate companion bill has almost unanimous support. A number of companies have already voluntarily adopted a “ban the box” policy, and have seen its positive effects on their company and society as a whole.

  • Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.” The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws – and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime – missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted.

Reason it could pass: Historically, such protections have garnered bipartisan support. In recent years, however, some extreme leftists have voiced concerns that such reforms could harm the environment. But 59 Democrats in the House, including Judiciary Ranking Member John Conyers and Rep. Jackson Lee, already saw the importance of protecting citizens, especially the most vulnerable, against being convicted of crimes they had no idea they committed. For any who still remain skeptical, left-leaning Yale Law Professor Gideon Yaffe makes a compelling case for liberals’ support of such reforms in The New York Times. Republicans have actively supported such reforms for over a decade.

Any one of these reforms would improve our federal justice system – and have a profound effect on our society. Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance. That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms. Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives. That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

Mark Holden is general counsel and senior vice president at Koch Industries.


The views expressed by authors are their own and not the views of The Hill.