The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Criminal justice reform poised to take off in 2018." Here are excerpts:
Criminal justice reform came back with such renewed energy this year after sputtering out in Congress in 2016 that meaningful bipartisan legislation is poised for success in 2018.
In October, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced he and a bipartisan group of senators were reintroducing the Sentencing Reform and Corrections Act, which would overhaul prison sentences for nonviolent drug offenders and allow for more judicial discretion during sentencing. The bill mirrors legislation introduced last Congress that failed after Senate Majority Leader Mitch McConnell, R-Ky., refused to bring it up.
Then days later, Sens. Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas, reintroduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act, which builds off of successful criminal justice reforms in the senators' respective states.
The CORRECTIONS Act requires the Department of Justice and its Federal Bureau of Prisons to find a way to reduce inmate recidivism rates. It also calls for lower-risk inmates to be put in less-restrictive conditions to reduce prison costs and allow for more resources to be shifted to law enforcement. The legislation also expands recidivism-reduction programs, and requires the federal probation office to plan for re-entry of prisoners ahead of time....
And finally, the Mens Rea Reform Act was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Republican Sens. Mike Lee of Utah, Ted Cruz of Texas, David Perdue of Georgia and Rand Paul of Kentucky....
Kara Gotsch, who oversees the Sentencing Project's federal advocacy work, told the Washington Examiner, she sees the likelihood of legislation passing as "small" and cited changes being made at the federal level in the Department of Justice under Attorney General Jeff Sessions as a cause for concern. "Areas to watch are how Sessions' harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed," Gotsch said, noting the Justice Department has predicted an increase in the prison population in 2018 after four years of decline under the Obama administration.
"Also, the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence. I will be watching to see how far they extend it."
The Justice Department says it will "continue to enforce the law" as the nation faces an opioid epidemic and rising violent crime. “In 2016, 64,000 Americans died from drug overdoses. For two straight years, violent crime has been on the rise. Americans voted for President Trump's brand of law and order and rejected the soft on crime policies that made it harder to prosecute drug traffickers and put dangerous criminals back on the street where our law enforcement officers face deadly risks every day," Justice Department spokesman Ian Prior said.
Where Congress could fail in 2018, states are there to pick up the slack....
For example, Republican Gov. Rick Snyder of Michigan signed an 18-bill criminal justice reform package in March, and state legislators in Florida ended the year championing various bills that they say would help reduce the state’s burgeoning prison population. A pair of measures are set to be taken up that would implement pre-arrest diversion programs statewide that Florida lawmakers say would reduce crime and incarceration rates, as well as a measure that would restore voting rights to some 1.6 million felons in the Sunshine State.
Other states such as New Jersey, Virginia, Alabama and New York elected candidates during the 2017 elections who openly support criminal justice reform, setting up the possibility for revamping at the state and local levels next year.
Phil Murphy, who was elected in a landslide to be the new governor of New Jersey, promised he would put the Garden State in a position to pass criminal justice reform. On his campaign website, he promises changes such as creating a commission to examine mandatory minimum laws, implementing bail reform to prevent someone from being stuck behind bars for being unable to pay a fine, and the legalization of marijuana “so police can focus resources on violent crime.”
"It's important to recognize that 2017 saw passage of criminal justice reform in red and blue states throughout the nation, in contrast to reforms stalling on the federal level," Udi Ofer, deputy national political director at the America Civil Liberties Union said. The ACLU worked to help pass 57 pieces of criminal justice reform legislation in 19 states, he noted.
"From sentencing reform in Louisiana and bail reform in Connecticut, to drug reform in Oregon and probation reform in Georgia, this year proved that the movement for criminal justice reform continues to be strong in the states, even under a Trump-Sessions administration," Ofer said, adding that in 2018, the ACLU expects "these reforms to continue, and to grow, particularly around bail reform, prosecutorial reform and sentencing reform."
For 2018, he said the ACLU is working on bail reform in 33 states including California, Georgia, Ohio and New York. In July, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced the Pretrial Integrity and Safety Act, which would encourage states to change or replace the process they use for allowing people to pay money to avoid sitting in jail until their trial. Ofer also said he expected the issues of mass incarceration and criminal justice reform to "play a larger role in federal and state elections in 2018" following the wins of candidates supporting such reforms in 2017.
As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible "easier" legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.
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