A generation ago, if you asked a Republican and a Democrat to debate criminal justice policy, they would have argued about which party was toughest on crime.  Now, they’re arguing the other way: who can be smart.

Already this year, numerous bipartisan bills have been introduced to address problems in the criminal justice system.  Some proposals would provide stronger rehabilitative programming in federal prisons.  Others would remove obstacles that make it hard for individuals to get jobs and public benefits after leaving prison.


Perhaps none would have a greater impact than the Smarter Sentencing Act, a bipartisan bill to reform sentencing for nonviolent drug offenses.  Authored by Sens. Mike LeeMichael (Mike) Shumway LeeSenate Republicans press federal authorities for information on Texas synagogue hostage-taker Put partisan politics aside — The Child Tax Credit must be renewed immediately These Senate seats are up for election in 2022 MORE (R-Utah) and Dick DurbinDick DurbinSchumer vows to vote on Biden Supreme Court pick with 'all deliberate speed' Bipartisan Senate group discusses changes to election law Democrats ask for information on specialized Border Patrol teams MORE (D-Ill.), the legislation would reduce inflexible mandatory minimum penalties for drug offenses.  It would give judges greater discretion in sentencing.  And it would extend the sentencing provisions of the 2010 crack cocaine law retroactively to certain prisoners sentenced under the old law, allowing them to petition courts for sentence reductions consistent with public safety.

The purpose of the Smarter Sentencing Act is to re-calibrate the federal approach to nonviolent drug crime sentencing.  Since harsh mandatory penalties were placed on the books in the 1980s, the federal prison population has increased eightfold.  Today, half of all federal prisoners are serving time on a drug charge.  Three quarters are black or Latino, even though people of all races use and sell drugs at roughly the same rates.  

Calls for reform have come from across the political spectrum.  For civil rights groups, sentencing reform is a matter of racial justice.  For faith groups, it is an issue of redemption.

For police, corrections workers, and many federal prosecutors, reducing drug penalties is an issue of public safety.  Overcrowding in federal prisons – now over 30 percent -- threatens the safety of prison guards and prisoners alike.  Spending on unnecessary incarceration consumes resources needed for crime prevention and programs to reduce recidivism.

Nevertheless, some members of Congress want to maintain the status quo.  They argue that mandatory penalties are an appropriate response to drug abuse, and that declining crime rates prove the effectiveness of harsh sentencing.  

But these claims are not supported by evidence.  According to a recent National Research Council report -- the product of a two-year study by the most distinguished scholars in the field -- increased incarceration "may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large."  Meanwhile, despite a decades-long war on drugs, outlawed narcotics are as pure and as readily available as ever.  As long as there is a demand for illegal drugs, there will be a ready supply of sellers.

Others say that there are no “low-level drug offenders” in federal prison.  They argue that the idea of a “nonviolent drug offender” is a myth.  But according to a 2011 report by the U.S. Sentencing Commission, approximately half of those individuals sentenced for a federal drug offense in a recent year were mules, couriers, brokers, or street-level dealers.  In other words, a substantial proportion were minor actors in the drug trade, many struggling with drug abuse problems of their own.

Finally, some warn that drug sentencing reform is dangerous.  They say that reduced penalties will make it harder for prosecutors to coerce testimony from low-level defendants.  But as Attorney General Eric HolderEric Himpton HolderMichigan Republicans sue over US House district lines State courts become battlegrounds in redistricting fights New Hampshire Republicans advance map with substantially redrawn districts MORE said last year, “Any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.”  

Moreover, any talk about “repealing” mandatory minimums is a red herring.  The Smarter Sentencing Act would not eliminate a single mandatory penalty, nor would it lower any maximum penalties.  Instead, according to dozens of former federal prosecutors and judges who have endorsed the legislation, reducing mandatory drug penalties would “help focus limited resources on the most serious offenders.”

Last month, as the Smarter Sentencing Act was reintroduced, a prominent U.S. senator said that reforming drug laws is an issue of “fairness,” “justice,” and “common sense.”  

Was it Chuck SchumerChuck SchumerSchumer vows to vote on Biden Supreme Court pick with 'all deliberate speed' Voting rights failed in the Senate — where do we go from here? Forced deadline spurs drastic tactic in Congress MORE, the liberal Democrat from New York?  Or Elizabeth WarrenElizabeth WarrenOver 80 lawmakers urge Biden to release memo outlining his authority on student debt cancellation Kelly pushes back on Arizona Democrats' move to censure Sinema Fiscal conservatives should support postal reform  MORE, the progressive from Massachusetts?  Nope.  Those words were spoken by Texas Republican Ted CruzRafael (Ted) Edward CruzFlake meets with Erdoğan in first official duties as US ambassador Senate Republicans press federal authorities for information on Texas synagogue hostage-taker Biden trails generic Republican in new poll, would face tight race against Trump MORE.

In a deeply divided Congress, criminal justice reform has become the one issue where it’s virtually impossible to distinguish right from left.

After decades of waging a failing war against drugs, Americans on both sides of the aisle are demanding a new approach.

Haile is federal advocacy counsel for The Sentencing Project.