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Hopes reignite for criminal justice reform

Chuck Grassley (L) and Dick Durbin (R) are re-introducing a reform bill. Photo: J. Scott Applewhite / AP

Criminal justice reform is moving again at the federal level after more than a year of inertia and disappointment for advocates. Two key bills are being introduced in Congress this week.

Why this matters: These bills — while only the first step in a long process — mark the first serious congressional engagement on criminal justice reform for more than a year. Reformers lost all their momentum during brutal 2016 political season in which candidate Donald Trump elevated "tough on crime" politics at the expense of bipartisan efforts to reduce prison sentences for non-violent criminals.

  1. On Monday, Republican Senators Orrin Hatch, Mike Lee, Ted Cruz, David Perdue, and Rand Paul introduced legislation to ensure that all federal criminal laws take into account whether the person committing the crime did so with intent. Their bill, the Mens Rea Reform Act, sets a default intent standard, meaning the government can't convict somebody of a federal crime unless it can be proven the person committed the crime "knowingly and willfully."
  2. Republican Senate Judiciary Committee Chairman Chuck Grassley and Senate Democratic Whip Dick Durbin want to pass "comprehensive legislation to review prison sentences for certain nonviolent drug offenders, reduce recidivism, and save taxpayer dollars." Grassley and Durbin said two weeks ago they planned to reintroduce their bill from the last Congress, and it could come out as soon as Tuesday, according to a source familiar with their efforts.

These bills are important both substantively and politically. Opposition to default mens rea standards — enshrining criminal intent standards at the federal level — was one of the main reasons why criminal justice reform legislation died in the Senate during the last Congress.

  • While it's only Republican senators introducing the mens rea bill, they've already won support for the reforms from groups on both sides of the aisle. Their press release includes statements of support from a Heritage Foundation scholar as well as the National Association of Criminal Defense Lawyers and the Federal Defenders of New York.
  • David Patton, Executive Director of the Federal Defenders of New York, said: "We are acutely aware of the need for mens rea reform. Over 80 percent of people charged with federal crimes are too poor to afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American. These are our clients, and too many of them are subject to laws that are neither fair nor consistent with traditional principles of criminal liability. This bill would help to remedy some of those failings."
  • Mark Holden, who leads Koch Industries' efforts to reform the criminal justice system, says he's optimistic that Congress can get rolling after months of stagnation.

Where the White House stands: It's still an open question. Jared Kushner is passionate about criminal justice reform — he often talks about how his father's incarceration changed his view about the issue — and he recently convened a meeting with a bipartisan coalition to discuss efforts to reform the criminal justice system. Criminal justice reformers also view WH Chief of Staff John Kelly as an ally. But Attorney General Jeff Sessions wants tougher sentences for drug offenders and remains unpersuaded by Kushner's ideas.

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