World·Analysis

For once, Trump and the Democrats agree on a bill. But it's still not a sure thing

U.S, President Donald Trump endorses it. Even Democrats are on board. Legislation on criminal justice reform could deliver something that has eluded legislators for two years — bipartisanship. But don't count on it passing Congress.

Rare bipartisan criminal justice reform should be low-hanging fruit for president

U.S. President Donald Trump points to his ear and asks, 'Did I hear the word bipartisan?' as he announces his support for the First Step Act at the White House on Nov. 14. (Andrew Harnik/Associated Press)

U.S. President Donald Trump endorses it, as do many powerful Republicans. Heck, even the Democrats are on board.

Legislation on criminal justice reform being pushed in the lame-duck Congress could deliver something that has eluded legislators over the last two years — an early holiday gift in the form of political bipartisanship.

Whether that happens after Congress reconvenes from the U.S. Thanksgiving break will be up to one Republican senator: Mitch McConnell. Trump lobbied the Senate majority leader on Friday to put the vote to the floor, tweeting that "really good Criminal Justice Reform has a true shot at major bipartisan support."

Trump has rare support from Democratic lawmakers. Several leaders in his own Republican Party are embracing the bill, which would loosen some prison sentences and improve prison conditions.

Republican Sen. Lindsey Graham, who will chair the Senate judiciary committee next year, wants to pass the bill, known as the First Step Act. By Graham's accounting, the bill would sail through the Senate with 80 votes.

"Let's start 2019 on a positive note," Graham told NBC's Meet The Press last week.

For Trump, First Step might seem to be low-hanging fruit. Most Americans strongly support reforms to decrease U.S. prison populations. A poll commissioned last year by the American Civil Liberties Union found 91 per cent of respondents wanted changes to the criminal justice system and 52 per cent of Trump voters favoured reducing prison populations.

'Trump has heeded political winds'

"People underestimate President Trump's ability to read the American people, particularly his base," said Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida. "Trump has heeded political winds and is making notes of where the political winds are blowing."

Trump's son-in-law, White House adviser Jared Kushner, has led the efforts to push for prison reform, once saying it was an issue "very close to my heart." Charles Kushner, his father, served time in federal prison after being convicted in 2005 of illegal campaign contributions and tax evasion.

"Jared Kushner has made this more than a political issue. It's a personal issue for him," Mitchell said.

Trump's White House senior adviser Jared Kushner, right, smiles as former senator Jim DeMint of the Heritage Foundation, left, applauds as Trump recognizes Kushner as he speaks about the criminal-justice bill. (Andrew Harnik/Associated Press)

But McConnell has so far been unwilling to commit to bringing the First Step Act to a Senate vote, despite prominent voices from the left and right supporting it. Nor has he come out publicly in favour of it.

One reading is that he's concerned the legislation would split Republicans. Some ultra-conservatives and tough-on-crime politicians like senators Tom Cotton of Arkansas and David Perdue of Georgia oppose the legislation.

McConnell "may see it as a political risk for the Republican Party," Mitchell said. "Just about all the opposition you see to this bill comes from the Republicans."

"It's essentially a 50-50 split; maybe a 60 per cent for, and 40 per cent against. But he's right, there's a cleavage in the Republican Party about whether to support this bill or not."

The House of Representatives easily passed the First Step Act in May in a 360-59 vote. Of those supporters, 134 were Democrats.

Bill would loosen mandatory minimum sentences

The bill aims to address the country's mass incarceration challenges, reduce recidivism and save the federal government money by easing the burden on overcrowded prisons through putting more inmates into transitional services like halfway houses or home confinement.

It would provide incentives to inmates in the federal prison system to finish rehabilitation programs — initiatives that would cut the risk of their leaving the corrections systems only to offend again. If the legislation passes, $50 million would go to the Bureau of Prisons over five years for education, job skills training and drug rehabilitation.

Mandatory minimum sentences would be lessened for non-violent drug offenders.

In addition, a humanitarian provision would end the practice of shackling pregnant women during childbirth and expand compassionate release for elderly and terminally ill inmates.

The "smartest part" of the legislative package, Mitchell said, is a criminal risk and needs assessment provision designed to reduce recidivism rates and move inmates out of prison earlier and into halfway houses or home confinement. The government could rely less on controversial private prisons.

Senate Majority Leader Mitch McConnell speaks during an interview in Washington in October. McConnell has reportedly indicated to Trump that he does not plan to put the bill for a vote in the current Congress. (Joshua Roberts/Reuters)

"Keeping a person in prison is very expensive," Mitchell said of the millions in potential savings. "And I think those cost savings appeal to traditionally conservative Republicans who are concerned about taxes."

Some Republicans see the First Step Act as a clear win. Iowa senator Chuck Grassley, who chairs the Senate judiciary committee, is in favour of the bill. So is Mike Lee of Utah. 

It isn't lost on Mitchell that Trump, by endorsing the First Step Act, also gets to twist the knife into his old political foes the Clintons. In White House remarks last week, Trump pointedly declared that the bill "rolls back some of the provisions of the Clinton crime law that disproportionately harmed the African-American community."

Bill Clinton admits he was wrong

The much-maligned Violent Crime Control and Law Enforcement Act, passed in 1994 under former president Bill Clinton, has been blamed for its focus on punitive measures. Clinton himself has since publicly expressed regret for signing the bill into law, telling a gathering of the National Association for the Advancement of Colored People in 2015 that it was a mistake that worsened problems in the criminal justice system by boosting incarceration rates.

"I signed a bill that made the problem worse," Clinton admitted.

Trump, Mitchell said, "is at least having some fun" by mentioning the Clinton-era penalties this bill would undo.

Democratic Rep. Hakeem Jeffries of New York, who co-sponsored the House package with Republican Doug Collins of Georgia, sees a window for further co-operation with the president.

Democratic congressman Hakeem Jeffries of New York co-authored the House package for prison reforms. (Cliff Owen/Associated Press)

"It absolutely can present an opening," Jeffries told CNN last week. "We've articulated a set of issues we think there are bipartisan avenues of support available to getting something done."

Lowering the cost of prescription drugs and a $1-trillion infrastructure plan are two other areas where Democrats are willing to work with the president.

But it's up to McConnell to bring the First Step Act to a vote before the end of the year so it won't have to be restarted in the next Congress. Mitchell said it's all riding on the Senate majority leader, who has reportedly informed Trump he has no plans to bring it to a vote this year.

"It looks clear that there are enough votes to get this passed. President Trump has said he would sign it," Mitchell said. "So the only opposition to this bill is Sen. McConnell."

About the Author

Matt Kwong

Reporter

Matt Kwong is a Washington-based correspondent for CBC News. He previously reported for CBC News as an online journalist in New York and Toronto. You can follow him on Twitter at: @matt_kwong

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