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 LeeZuckerberg launches public defense of Facebook as attacks mount Overnight Defense — Presented by Boeing — Pence says Turkey agrees to ceasefire | Senators vow to move forward with Turkey sanctions | Mulvaney walks back comments tying Ukraine aid to 2016 probe On The Money: Senate fails to override Trump veto over border emergency | Trump resort to host G-7 next year | Senators to push Turkey sanctions despite ceasefire | McConnell tees up funding votes MORE (R-Utah) and Dick DurbinRichard (Dick) Joseph DurbinDemocrats dig in ahead of Supreme Court ruling on 'Dreamers' Senate GOP braces for impeachment trial 'roller coaster' Trump judicial nominee delayed amid GOP pushback 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 HolderSupreme Court throws out challenge to Michigan electoral map Amash: Trump incorrect in claiming Congress didn't subpoena Obama officials We can't allow presidents and public opinion to further diminish the work of the press 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 SchumerCharles (Chuck) Ellis SchumerTurkey says soldier killed despite cease-fire in Syria Schumer calls for FDA to probe reports of contaminated baby food How Trump and Pelosi went from bad to worse MORE, the liberal Democrat from New York?  Or Elizabeth WarrenElizabeth Ann WarrenWarren to protest with striking Chicago teachers Overnight Health Care — Presented by Partnership for America's Health Care Future — Four companies reach 0M settlement in opioid lawsuit | Deal opens door to larger settlements | House panel to consider vaping tax | Drug pricing markup tomorrow On The Money: Trump dismisses 'phony Emoluments Clause' after Doral criticism | Senate Dems signal support for domestic spending package | House panel to consider vaping tax MORE, the progressive from Massachusetts?  Nope.  Those words were spoken by Texas Republican Ted CruzRafael (Ted) Edward CruzThe Hill's Morning Report - Presented by Better Medicare Alliance - Trump has had a rough October Hillicon Valley: GOP lawmakers offer election security measure | FTC Dem worries government is 'captured' by Big Tech | Lawmakers condemn Apple over Hong Kong censorship Lawmakers condemn Apple, Activision Blizzard over censorship of Hong Kong protesters 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.