Confirmation combat can’t crush bipartisan criminal justice reform

Trying to find bipartisanship in Supreme Court judicial confirmation hearings is like going to a boxing match in search of kumbaya. But just as fighters take off their gloves when they step out of the ring, there’s hope that a few politicians scoring points in judicial jujitsu won’t preclude propitious policymaking.

The “soft on crime” critique of Judge Ketanji Brown Jackson has prompted obituaries for the era of bipartisan support for criminal justice reform, a détente that the country has enjoyed since Texas kicked off a wave of policy change 15 years ago. While the coalition may be fragile, the prospects remain encouraging for continued progress on both public safety and justice.

Optimism stems in part from the fact that the primary responsibility for criminal justice policy rests at the state level, and the most significant reforms continue to occur there. Indeed, it was state-level reforms that first led to prison closures and reduced recidivism through treatment courts and other alternatives to incarceration, including in red states like Texas and Georgia. Those advancements, in turn, inspired the federal First Step Act signed by President Trump in 2018, a law that pared back mandatory minimum sentences for drug crimes and allowed low-risk individuals to shave time off their prison terms by completing rehabilitative programs.

Today, state legislators remain the most significant actors in this arena, given that about 90 percent of all criminal cases and incarcerated populations are at the state and local levels. In Oklahoma, which has the nation’s highest incarceration rate, a bipartisan measure that brings consistency and proportionality to sentencing for nonviolent offenses overwhelmingly passed the state’s Senate on March 23. It would also cap fines at reasonable amounts and is expected to reduce the prison population by about 1,000 people.

Another red state, Ohio, is advancing a handful of significant bipartisan criminal justice reforms in its current legislative session. These include a “clean slate” proposal recently endorsed by conservative former Ohio Secretary of State Ken Blackwell. This bill, which mirrors policies adopted in the last few years in Utah, Delaware, Michigan and Pennsylvania, would similarly create a system to automatically expunge old, low-level criminal records.

Additionally, while bail reform has become a political pinata in some places, a group of 50 bipartisan lawmakers in Ohio has come together to back legislation that would enact common-sense changes to the state’s bail system. These include ensuring that all defendants receive an initial hearing within 24 hours, with only high-risk defendants being further detained for a more thorough review within 48 or 72 hours. Importantly, the package would also require that one’s ability to pay be considered in setting any financial conditions.

While continued momentum on the state level promises to have the most far-reaching impact on the justice system, strong possibilities remain this election year for bipartisan congressional action.

One area with potential for progress is marijuana policy. There are a variety of proposals for unwinding failed federal policy on cannabis with varying levels of bipartisan support, and one bill to remove the federal prohibition on marijuana passed the House on April 1 with a handful of GOP votes. With her own proposal that has a better chance of earning 60 votes in the Senate, Rep. Nancy Mace (R-S.C.) has emerged as a compelling leader in the effort to end federal criminalization, and, on federalism grounds, defer on marijuana policy to state laws. Similarly, the Council on Criminal Justice’s Task Force on Federal Priorities, chaired by former Republican congressman and Georgia Gov. Nathan Deal, similarly recommended that Washington create a waiver system that resolves the multiple conflicts between the federal government and states that have legalized the substance.

Also, in recent weeks, additional Republican senators have become cosponsors of a bill that would end the pronounced disparity in penalties between crack and powder cocaine, which would affect some 1,500 new sentences every year. With the new Republican additions, the EQUAL  Act now has 60 sponsors, the threshold that is expected to trigger a hearing in the coming weeks.

Other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.

Undoubtedly, the recent rise in some types of violent crime, most notably homicides, has strained bipartisan coalitions around sensible reforms. While fearmongering is unwarranted, rigorously evaluating the impact of recent justice system changes is not just desirable, but necessary.

One such change was the release of low-risk individuals from federal prison to reduce COVID-19 fatalities, releases authorized by directives from former Attorney General Bill Barr and the bipartisan CARES Act. This provided a valuable opportunity to test the impact of carefully screened early releases, many of which involved individuals who may have “aged out” of crime after serving significant time behind bars. According to congressional testimony, data as of December 2021 indicates that out of 36,000 such releases, only 289 individuals had been returned to prison, mostly for technical violations of supervision, such as failure to report, rather than new offenses.

Criminal justice policy is too important to leave to any one political party, and all Americans, regardless of ideology, rightly demand a system that protects both their lives and liberties. While hearings for both Republican and Democratic administration Supreme Court nominees have become circus-like, there is reason to believe that our political leaders can move from confirmation combat to considerable consensus on the next steps to achieve safety and justice for all.  

Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice. Follow him on Twittter @marcalevin