WASHINGTON – A widening Republican rift over revamping the nation’s criminal justice system is dashing hopes for overhaul in the final year of President Barack Obama’s tenure despite strong bipartisan support and a concerted effort by the second-ranking GOP senator.
As one of the issue’s top advocates in Congress, John Cornyn of Texas faces reluctance from Senate Majority Leader Mitch McConnell, opposition from home-state Senate colleague and Republican presidential candidate Ted Cruz and reservations from several GOP senators, who expressed their concerns at a closed-door meeting last week.
As opposition has grown, Cornyn is lowering expectations for election-year success.
“I am hopeful, but I don’t think it’s critical we do it this year,” the three-term senator said in an interview with The Associated Press a day after the private Republican caucus meeting. “I have been involved in a lot of fights around here that have taken us years to get things done. And ultimately the question is, can you get it done at some point.”
The bipartisan legislation, passed by the Senate Judiciary Committee in November, would give judges discretion to give lesser sentences than federal mandatory minimums, eliminating mandatory life sentences for three-time, nonviolent drug offenders. It also would create programs to help prisoners successfully re-enter society. The idea is to make the sentencing system fairer, reduce recidivism and contain rising prison costs.
Disparate voices — from Obama and the American Civil Liberties Union to the conservative Koch Industries — have said the system is broken and backed the Senate bill. In 1980, the federal prison population was less than 25,000. Today, it is more than 200,000.
But some Republicans are worried that the reduction in mandatory minimums would lead to the release of violent felons — a criticism Cornyn and other supporters dispute.
Cruz has said lawmakers should expect to be held accountable and the justice system doesn’t “additional leniency for violent criminals.”
There’s more consensus on prison overhaul, which would provide incentives for low-risk offenders to prepare for a life on the outside. Some Republicans have suggested moving that part of the bill separately.
Cornyn says it’s important to keep the legislation together, as it was negotiated by a strong bipartisan coalition. Democrats backing the bill wanted to get rid of some of the mandatory minimums completely, but compromised on the reductions.
Still, “If at some point we can’t get the bill done, I think we’ll have to take another look at that,” he said of splitting it up.
Advocates for the legislation want it done this year, and soon, because Obama has made it a priority. The next president may not be so enthusiastic. They have been watching McConnell, who has been purposefully noncommittal. That’s in contrast to Speaker Paul Ryan, R-Wis., who says he wants to move on the issue this year. The House Judiciary Committee has approved several separate criminal justice bills.
“You don’t have to do it now, but why wouldn’t you?,” asked Mark Holden, general counsel and senior vice-president of Koch Industries, which sees criminal justice as a way to expand personal liberty.
Cornyn is well-suited to play “peacemaker,” as he describes it. He has deep personal experience with the issues as a former district judge, member of the Texas Supreme Court and Texas attorney general.
And as the No. 2 Republican in the Senate, he’s the top vote counter and accustomed to trying to bring his caucus together.
He has been lobbying McConnell, but says he understands that the leader needs to get consensus. McConnell announced last week that he would convene a GOP meeting to discuss the issue.
Cornyn dismissed the idea that lawmakers should worry that the effort to shorten some prison terms could result in another case like Willie Horton, a 1980s criminal who was let out on a weekend furlough in Massachusetts and raped a woman. An ad over the issue helped sink Democrat Michael Dukakis’s 1988 presidential bid. Furloughs are an entirely different issue, Cornyn says, and under the Senate bill each case would be reviewed by a judge before the prison sentence was reduced. Plus, the idea is to target nonviolent criminals.
“That misunderstanding is something that has now complicated our work more broadly,” Cornyn said of Cruz’s comments.
Some conservatives, particularly former federal prosecutors like Sen. Jeff Sessions, R-Ala., have said they believe the bill could reverse an overall downward trend in crime.
Cornyn is also working to find a compromise on language that would ensure people who are prosecuted knowingly committed a crime. Known as “mens rea,” the provision has proved to be a wedge between House Judiciary Committee Chairman Bob Goodlatte, R-Va., and the Senate. Democrats and the Obama administration have said the provision could shield some corporations from liability.
As Congress weighs the road ahead, Obama is taking a small unilateral step to change the system. He said Monday that he would ban the use of solitary confinement for juvenile and low-level offenders in federal prisons, similar to a provision in the Senate bill.
Speaking to a conference of corrections officers Tuesday, Attorney General Loretta Lynch urged Congress to pass the Senate bill.
“At this critical moment of rare bipartisan agreement, it is more important than ever that we harness this momentum and continue to push forward,” she said.
Follow Mary Clare Jalonick on Twitter at http://twitter.com/mcjalonick