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Democrats and GOP agree on criminal justice reform. Can it last?

Updated

It’s hard to imagine a worse policymaking environment than one that combines a crowded presidential campaign and a heated conversation around race. But against all odds, the unrest in Baltimore over 25-year-old Freddie Gray’s death has prompted a shockingly substantive discussion – and areas of agreement – among leaders of both parties over the subject of criminal justice reform. 

For now, at least. 

On one front, social spending, Republicans and Democrats have fallen into predictable opposite camps with President Obama and fellow Democrats bemoaning a lack of government investment in poor communities and Republicans like Jeb Bush pointing to Baltimore’s ongoing struggles as proof anti-poverty programs had failed already.

But when it comes to a separate suite of questions regarding police abuse, crowded prisons, overly long sentences and drug laws, however, there’s surprising overlap. Leaders in both parties say they’re committed to reducing America’s world-beating imprisonment rate (about 1 in 100 adults are incarcerated), finding new ways to keep nonviolent offenders out of prison, and providing stable employment for prisoners when they leave.

“It’s time to end the era of mass incarceration,” Hillary Clinton said in a policy speech at Columbia University last month. 

Related: Criminal justice reform a key topic for 2016 candidates

On the Republican side, 2016 hopefuls including Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Texas) and former Sen. Rick Santorum (R-Pa.) have each brought up criminal justice reform in responding to the Gray shooting.

Lawmakers and activists working on the issue see a genuine opportunity, but they’re well aware Congress has squandered similar bipartisan moments on a range of issues, most recently on immigration. There is plenty that can go wrong on the way to new legislation reaching the president’s desk.

For now, however, the prognosis is good. Criminal justice reform is an area where a number of presidential prospects have genuine credibility, giving the issue a chance to shine in the national spotlight.

“You want to talk about real conservative governance? Shut prisons down. Save that money.”
Rick Perry
Paul has spent months teaming up with Democrats like Sen. Cory Booker (D-N.J.) on legislation to reduce mandatory minimum sentences and expunge criminal records for nonviolent offenders seeking jobs. Paul has also introduced legislation to restrict civil asset forfeiture, in which police and federal authorities confiscate property suspected of criminal involvement. And Paul has not shied away from using speeches to address racial disparities in the justice system.

“[Criminal justice reform] is a really broad area with a lot of urgencies, which range from changing mandatory minimums to ending juvenile incarceration that a lot of countries consider torture to even access to medical marijuana for very sick people,” Booker told msnbc on Tuesday. “The good news is there’s a lot of bipartisan support in the Senate for a large swath of these issues.” 

Outside Washington, former Texas Gov. Rick Perry’s work to reduce his own state’s prison population through drug treatment and other alternatives has been hailed as a model by advocates. Perry, a likely 2016 GOP contender, boasted about the accomplishment – and even cited praise from Obama and then-Attorney General Eric Holder – at a panel discussion on criminal justice reform at the Conservative Political Action Conference in February.

“You want to talk about real conservative governance?” Perry said. “Shut prisons down. Save that money.”

Reform advocates say the current environment reflects a sea change after decades in which the two parties competed for the toughest anti-crime rhetoric. Former President George H.W. Bush linked Democratic rival Michael Dukakis to convicted rapist Willie Horton in 1988 – and Bush won. Then-Arkansas Gov. Bill Clinton presided over the execution of a mentally disabled inmate during his 1992 campaign then signing a crime bill as president that he’s since acknowledged went too far in expanding the prison population.

While there’s no one silver bullet policy, civil liberties groups are rallying around a variety of bills and proposals in the hopes they can finally make some headway this year.

In the Senate, in addition to Paul and Booker’s efforts, there’s Sen. Mike Lee (R-Utah) and Sen. Dick Durbin’s (D-Ill.) Smarter Sentencing Act, which is backed by former Attorney General Eric Holder and grants more discretion to judges in determining sentences. Rep. Jim Sensenbrenner (R-Wis.) is looking at a package of changes to both sentencing and re-entry policies.

Paul, Congressman Keith Ellison (D-Minn.) and Sen. Brian Schatz (D-Hawaii) are pushing legislation to provide body cameras to cops, building off of executive action Obama took to offer police departments grants for their use. House Judiciary Chairman Bob Goodlatte has promised hearings on police issues raised by Baltimore and Speaker John Boehner told NBC’s “Meet The Press” he’s concerned about a crisis in relations between African-American men and cops.

Groups focused on relaxing drug laws, which they argue drive up arrests and breed conflict with police, already earned congressional backing last year for measures blocking the federal government from interfering with state medical marijuana laws and see room for more progress as well.

Related: Report calls for fix to criminal justice system

How did we get here? Supporters of reform cite shifts on the left and right alike. 

On the Democratic side, a drop in crime rates and a renewed focus on the party’s younger and racially diverse base has given space for candidates like Hillary Clinton to embrace calls for change from African-American and civil rights groups without fear of political backlash.

“Ten years ago when I started, I was doing nothing but opposing bills that had more mandatory minimum sentences in them,” Jesselyn McCurdy, senior legislative counsel at the American Civil Liberties Union, recalled to msnbc in an interview. “All this started to change around the time of the crack-cocaine law five years ago [which reduced sentencing disparities between powder and smoked cocaine]. People began to see that the sky didn’t fall.” 

“All this started to change around the time of the crack-cocaine law five years ago. People began to see that the sky didn’t fall.”
Jesselyn McCurdy, ACLU
On the Republican side, different factions of the party have arrived at reform from different angles.

Marc Levin, whose Texas-based group Right on Crime counts everyone from Jeb Bush to Family Research Council president Tony Perkins to former Speaker Newt Gingrich among its backers, lists a number of key sources of support. One is from the religious right, which grew more interested in reform through prison ministries where pastors saw firsthand the devastating impact incarceration had on families.

Another is from fiscal conservatives – Americans for Tax Reform founder Grover Norquist is a major ally – who believe skyrocketing prison costs are hoarding money that could go to tax cuts instead. Finally, libertarian and tea party groups have taken a lead role in opposing drug laws, intrusive police practices, and over-criminalization that they view as examples of government overreach. 

“Certainly, I think there’s growing support for these kinds of reforms,” Levin said. “There’s a lot of reason to be optimistic something will happen at the congressional level this year.” 

Levin’s group is part of a broader reform partnership, the Coalition for Public Safety, which includes the American Civil Liberties Union, the liberal Center for American Progress, the socially conservative Faith and Freedom Coalition and tea party group Freedomworks, among other participants. The Charles Koch Institute, funded by funded by billionaire Charles Koch, is also working to promote similar reforms. 

With such a broad ideological consensus, how can Congress not act? Well, we’ve been in this position before.

There was the time everyone was ready for bipartisan action on climate change (even Newt Gingrich!) until they weren’t. Then the time everyone was ready to do something on immigration (even Newt Gingrich!) until they weren’t. A brief coming-together moment on a long-term plan to reduce deficits started falling apart in 2010 when Republicans voted against their own bill to create a bipartisan commission on the issue after Obama endorsed it. The closer bipartisan ideas get to bipartisan law, the higher the chances are that individual items – real or imagined – will generate a backlash from entrenched interests or on talk radio. 

“To me the biggest challenge is getting people to focus in on what the issues are and what the bill actually says,” Sen. Lee told msnbc on Tuesday. “Once they understand what it actually says and why we need it, usually we can get them.”

One challenge is Senate Judiciary Chairman Chuck Grassley (R-Iowa), who in floor speeches has derided Lee’s proposals to reduce mandatory sentences as a tool of the “leniency industrial complex.” Despite his skepticism, Grassley told msnbc on Tuesday that he plans to take up the issue this year to look for areas of compromise.

“We’re going to start talking about sentencing reform, see if we can reach an agreement,” he said. 

Other groups who have posed obstacles on the state level to a variety of reforms include police unions and organizations representing prosecutors and correctional officers. These are tough opponents to dismiss. Unions have pull on the left while conservative pundits often side with police in civil rights disputes.

“There is bipartisan support, but there’s also bipartisan opposition as well,” the ACLU’s McCurdy cautioned.

At the edges of the civil liberties love-fest this week, there were some signs of the old Dirty Harry mindset creeping in at the edges.

The 2012 Republican standard-bearer Mitt Romney took to Fox News to lash out at Hillary Clinton for using the unremarkable and widely used term “mass incarceration,” suggesting it “smacked of politicization” and was designed to undermine confidence in America’s legal system.

“When she said we’re not going to have mass incarcerations in the future, what is she referring to?” Romney said. “We don’t have mass incarcerations in America. Individuals are brought before tribunals, and they have counsel. They’re given certain rights. Are we not going to lock people up who commit crimes?” 

Even Paul, whose leadership on these issues in the Senate is beyond reproach, instinctively tacked right rhetorically in his initial response to Baltimore and emphasized the importance of fatherhood over criminal justice reform. Cruz paired mentions of reform with a rant against Obama for “inflaming tensions” over race, an ominous nod to previous incidents like the Trayvon Martin shooting that split opinion across partisan lines after the president weighed in. 

Related: When will mass incarceration stop?

Levin of Right on Crime is optimistic that the politics favor action for both sides. Republicans in Congress want to prove they can do more than block things they don’t like, while Obama wants to leave behind a legacy of solid accomplishments.

“Our hope is basically that good policy can be good politics,” Levin said. “We don’t care who gets the credit.”

The issue of who gets the glory, however, has stifled many a bipartisan push in the past. Both sides, but especially conservative Republicans, are reluctant to hand the other a policy win they can campaign on in the next election. This has a tendency to turn things ugly as partisans scramble to deny credit to the other side: Paul’s response to the Clintons renouncing past support for various hard-on-crime measures was to slam their 1990s record and accuse them of trying to “emulate” him. Democrats, meanwhile, glossed over their substantive agreements with Paul to bash him for joking to radio host Laura Ingraham that he was glad his Amtrak passed Baltimore during the riot and to dredge up his old criticisms of the Civil Rights Act.

There’s some method to Paul’s madness here. The easiest way to lose support among rank-and-file partisans for a bipartisan idea is if they believe they’re capitulating to the other party’s desires. As a result, party-crossers often try to frame their proposals as a swipe at their opponents.

“We don’t have mass incarcerations in America. … Are we not going to lock people up who commit crimes?”
Mitt Romney
During the 2013 immigration debate, for instance, Rubio worked in vain to convince conservatives that passing his bipartisan immigration bill would show up Obama’s “half baked” proposals even as they shared the same broad structure. Other Republicans backing immigration reform, like Bush, implausibly claim that Obama has been sabotaging legislation all along to suit his political goals, even after Republican Speaker John Boehner publicly refused to produce any alternative bill at all in order to quiet a conservative uproar.

Activists see some advantages in their push for criminal justice reform over previous bipartisan efforts. For one thing, their work encompasses a wide range of small bills rather than one comprehensive bill (like health care or immigration) that requires many interlocking components at once to work. This gives them more opportunities to make progress even if they don’t get everything they want in one bill or another. 

For now, all they can do is take advantage of the moment, keep up a united front, and hope they can succeed where others failed.

“I’m too new down here in the Senate to be cynical yet,” Booker told msnbc. 

Democrats and GOP agree on criminal justice reform. Can it last?

Updated