The Daily - Why Republicans Want a Criminal Justice Overhaul

Episode Date: December 12, 2018

President Barack Obama came very close in 2015 to passing a bipartisan bill to rewrite prison and sentencing laws. Three years later, the same people who were responsible for stopping that bill may become responsible for passing a scaled-back version. Guest: Nicholas Fandos, who covers Congress for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. In 2015, President Obama came very close to passing a bipartisan bill to reform the criminal justice system. Three years later, the people responsible for stopping it may become the same people responsible for stopping it may become the same people

responsible for passing a new version of the same bill. It's Wednesday, December 12th. So at about 10 o'clock this morning, Mitch McConnell walked onto the floor of the Senate. Madam President. Majority Leader. I think it's time the Senate subjects itself to a bit of a reality check. I'd gotten a heads up a couple minutes early from somebody who works for him saying, pay attention to his speech just now.

Nick Fandos covers Congress for The Times. And he comes out and starts to say, we need to have a reality check here in the Senate. We only have a couple weeks left and a lot of issues to run through. Today is December the 11th. Here are just some of the things the Senate needs to accomplish before this Congress adjourns. One of them was the so-called First Step Act, which is a big package of prison and sentencing reform measures

to change the federal criminal justice system and begin to unwind some of the tough-on-crime policies of the 80s and 90s. It seemed as if this criminal justice bill was dead. And then he takes a pretty quick pivot and says, At the request of the president and following improvements to the legislation that have been secured by several members, the Senate will take up the recently revised criminal justice bill this month.

I'm going to put this on the Senate floor as soon as the end of the week. So as a result of this additional legislative business, members should now be prepared to work between Christmas and New Year's, if necessary, in order to complete our work. Which took advocates of this effort totally by surprise. Senator McConnell is the person who, in 2015-2016, effectively killed a very similar version of the bill that President Obama and his allies put forward just a couple of years ago.

And what's the story behind McConnell doing that? So entering the last two years of President Obama's presidency, you had this kind of unusual coalition that came together. Welcome, everybody, to a bipartisan news conference. We're here today because a lot of hard work and a strong desire by those of us here to make the Senate work. So you have Chuck Grassley and Dick Durbin. It's no surprise that we are a political odd couple. We come from different spots on the political spectrum, but we found common ground. Durbin, a Democrat, Grassley, a Republican, both from the Midwest, come together and work with President Obama and then with Speaker Paul Ryan in the House

to put forward a criminal justice bill. We did something which we believe is fundamental to why we were elected to the Senate. We identified the issue and the challenge, and we sat down together to reason together and compromise. The net result is, for the first time in a generation, we are tackling the issue of criminal justice to make America safer. And they rolled it out with great fanfare. They picked up support and endorsements from all kinds of groups, the ACLU, the Koch brothers, two groups that don't come together very often on policy matters.

I think when it comes to criminal justice, it's not a left-right issue. At a certain point, it becomes a right-wrong issue. They had different reasons to come to the issue. We are libertarians, and we want to remove the obstacles to opportunity for the disadvantaged. And we need to start treating people individually in the criminal justice system, consistent with the Bill of Rights. And people with drug problems, people who have mental illnesses, they probably shouldn't be in the criminal justice system.

And people who make mistakes, let's not write them off forever. Let's give them a chance to reintegrate. So this coalition coalesced and there was a kind of extraordinary, it seemed like, opportunity in an era of divided government in Washington to actually get a big policy decision done. Hillary wants to release violent criminals and criminal offenders from prison. That's wonderful. Enjoy yourselves. But as 2015 slips into 2016, you have Donald Trump emerging and victorious in the Republican primary, running in large part on a tough-on-crime republicanism. I'm going to put criminals behind bars and guarantee that law-abiding Americans have the right to self-defense. 100%.

And in that context, Senator Mitch McConnell nearly unilaterally killed this effort by saying, I'm not going to put this bill on the Senate floor. In terms of scheduling in the Senate, as I think you already know, we have some pretty serious divisions among Republicans. People close to Mr. McConnell say that he saw the issue as one that divides Republicans, and particularly his Republicans in the Senate. And that putting issues that divide Republicans on the floor, particularly in an election year, when a lot of his senators were up for re-election, was a dangerous step that could expose them to criticism and hurt their candidacies. It is a pretty spirited debate within our conference.

And we have really not on a philosophical basis. I have some very conservative members who are in favor of it and who are opposed to it. And so despite this overwhelming support from senators and outside groups and the president, he basically sat on it and the effort died a slow death, as most decisions that he makes actually is primarily a political calculation, not a policy consideration. It didn't look to me like a good agenda item for us at this point, but I wouldn't want to rule it out for next Congress. So how do we find ourselves in a position now where Donald Trump and Mitch McConnell are basically working to pass a version of the same legislation that Obama wanted and McConnell blocked in some ways because of Trump?

That's sort of confusing. What's happened in the time since? Yeah. So I would say that there are two factors here. One are two senators, Chuck Grassley and Dick Durbin, who after 2016, after seeing President Trump take office, rather than giving up on this issue, actually decided to take another go at it. And they found in the White House an unlikely partner.

Look, we have a great criminal justice system in this country. It's the best in the world, but it's still far from perfect. Jared Kushner, the president's son-in-law and advisor in the White House, who it turns out was a big proponent of the same kind of changes that they wanted to see. You know, we're putting too much money towards warehousing people who we don't need to be warehousing. That money instead should be going to law enforcement on the front lines to keep our community safe. Kushner's own father had been in prison for a number of years. This is an issue that, for that reason and others, was very important to him. He teamed up with Grassley and Durbin and, you know, more or less quietly for a year

worked on this issue behind the scenes. They fought internal fights with Jeff Sessions, President Trump's first attorney general, who was adamantly opposed to these changes. And then they start to build support on Capitol Hill. About a month ago, my colleague Maggie Haberman and I began to hear rumblings that President Trump was going to come out and endorse this bill and this compromise. This was after President Trump had fired Attorney General Jeff Sessions, so the kind of chief in-house critic was gone. Working together with my administration over the last two years,

these members have reached a bipartisan agreement. Did I hear the word bipartisan? Did I hear that word? And came out and said, this is the right thing to do. Among other changes, it rolls back some of the provisions of the Clinton crime law that disproportionately harmed the African-American community. And it was kind of funny, he explicitly, Trump, who, you know, obviously remains preoccupied with his Democratic predecessors, you know, deliberately called out the crime bill that Bill Clinton signed in the 1990s, which created many of these policies. And you all saw that and you all know that. Everybody in this room knows that. It was very disproportionate and very unfair. And painted himself as somebody who was going to begin to roll these back out of fairness and take a step that President Obama had not been able to do.

We will have done something that hasn't been done in many, many years. And it's the right thing to do. It's the right thing to do. Thank you all very much. Thank you very much. And so at that point, it became a matter of getting as many Senate Republicans as possible on board. And advocates of the legislation, both on Capitol Hill and outside groups, basically set up war rooms to start winning people over and pressuring Senator McConnell.

President Trump is urging the top Republican and Democrat in the Senate to work together on criminal justice legislation. President Trump made several phone calls to him behind the scenes. He sent a couple of tweets. Really good criminal justice reform has a true shot at major bipartisan support. Senator Mitch McConnell and Senator Schumer have a real chance to do something so badly needed in our country, would be a major victory for all. Sent Mike Pence up to the Hill to advocate for it.

Outside groups took out advertisements in Senator McConnell's home state. Wealthy Republican donors were making calls to the majority leader, all advocating for this thing to be done and to be done before the end of the year. And what we saw today was that that pressure and the support that the senators were building in terms of Republicans saying they would vote for this bill reached a critical mass. And Senator McConnell said, I can't stand in the way of this anymore. And Senator McConnell said, I can't stand in the way of this anymore. So what is a version of criminal justice reform that has this bipartisan support actually look like?

What will actually be in this bill that senators are likely to be voting on? So the broad strokes of this bill include kind of three different buckets of changes to the criminal justice system. three different buckets of changes to the criminal justice system. The first is creating a whole new batch of programs and putting money to fund them to basically prepare inmates and federal prisoners for life on the outside. So these are job training programs. Some of them are faith-based programs. They're designed to try and ensure that people don't recommit crimes and come back into the prison system. The second bucket are expansions of good behavior and early release programs. So this incentivizes people for taking part in bucket number one for good behavior, for other things that they do while they're in prison to prepare themselves for life after, and says, we'll shave time off the end of your sentence if you do these things. And then the third bucket

is the set of changes to federal sentencing laws. So one of these, for instance, lowers mandatory minimum sentences for nonviolent drug offenders and gets rid of the so-called three strikes you're out penalty where with three convictions you're automatically in jail for life. Another is a provision that makes retroactive changes that were passed into law a few years ago that more equalized the disparity between the way the federal government penalizes offenders with crack versus powder cocaine. And this is an issue that in particular has led to a big racial disparity in the way that cocaine users or people in possession of cocaine were punished in the federal system. Then there are a host of other kind of smaller pieces that have

been thrown on here about trying to get prisoners into facilities closer to where they live, provisions that ban, in almost all cases, the shackling of pregnant women, solitary confinement for juveniles, things like that that have kind of existed in the criminal justice system. And there's a consensus are wrong or unethical, but needed to be addressed. And so this is the venue where that is happening. And you've been on the Hill today since McConnell surprised everyone by moving this forward. How are lawmakers on both sides talking about this bill? So on the Hill these days, almost every issue is Republicans versus Democrats. On this one, it is Democrats plus about half or a little more than half of

Republicans, and then a group of conservative Republicans who are deeply opposed to these set of changes. So on the one hand, you have folks who have been working for literally five, six years to try and see these changes that are thrilled. This is the first time in a significant way we're stopping the moving in the wrong direction and turning around and taking a step. It's not all the way there, but taking a step in the right direction to begin to correct for the ills of the last 25, 30 years. Talking about a historic change that's going to begin to halt and turn around what they see as a phenomenon of mass incarceration, civil rights issue. I went to law school in 1994, the same year that they passed the tough on crime bill here, and that just exploded the American criminal justice system.

While our roads and bridges and tunnels have been crumbling, we were building, between the time I was in law school and the time I was mayor of the city of Newark, we were building a new prison about every 10 days. You know, they're talking about was in law school and the time I was mayor of the city of Newark, we were building a new prison about every 10 days. You know, they're talking about this in big historic terms. If anything, we should be cracking down on drug dealers. I've got legislation that would increase mandatory minimums for fentanyl, but also overturn a Supreme Court decision from just three years ago that let many violent felons back onto the streets, armed career criminals. On the other side, you have people, the most vocal is Senator Tom Cotton, a Republican of Arkansas, a young Republican who usually has the president's ear,

who is not pleased at all, who tends to speak in terms that are a little bit old school for Republicans. It just stands to reason when most prisoners, when released from prison, commit future crimes, that if we let more prisoners out or shorten their sentences, you're going to see an increase in crime in this country.

He's made the argument that Republicans could potentially lose seats in primaries over this, that this is a bad vote for them to take, and that they're not making their community safer, they're making them more dangerous. And there are a number of other senators who agree with that, but he's kind of the most vocal critic of the bill. And how are Republican leaders trying to win over Republicans like Tom Cotton?

People like Tom Cotton are never going to vote for this bill, but there's a class of Republicans kind of in the middle, and we don't know exactly how many they are, who are wavering, who I think want to be supportive of the bill, or they've indicated that they want to be supportive to the bill, but they need some cover. So President Trump has been hugely important to providing that. Fox, the parent company of Fox News, came out with a pretty extraordinary statement endorsing the bill, which is something they don't usually do. This struck us as unusual,

so we went back and did some reporting and found that the White House had actually put some pressure on Fox to put this together. And the statement that was released late last week had the signature on it of Hope Hicks, who was the former White House communications director and longtime Trump aide, who's now the head of communications at Fox. And it was her first statement in that new job. So cover, meaning protecting senators who are concerned about backlash from conservative constituents. And the idea being that if Fox tells its audience that this is okay, voters are less likely to see it as a betrayal of conservative values. Actually, no, it's less about Fox News telling their audience that it's okay proactively because they haven't done that explicitly.

It's about the parent company for Fox News sending a kind of signal directly to senators that, don't worry, we're not going to go after you on this issue. It's okay for you to take this vote, and our network's not going to make a problem for you, which is a pretty remarkable thing. And after that, you saw a kind of flood of these conservatives who are perhaps unlikely allies, Ted Cruz of Texas, David Perdue of Georgia, come out and support this bill. So what about McConnell himself? Does he support this legislation that he's asking other Republicans to now support and the same legislation that he so successfully blocked in 2015? So that's actually one of the really fascinating questions that those of us reporting on this have been trying to figure out through this process. Senator McConnell has repeatedly

said that he's not going to put his thumb personally on the scale one way or another on this bill, that it's about how many Republicans can support it. Now we know there are enough that he's going to put it on the floor. But the interesting thing is what his personal considerations are. And he, as somebody who's up for reelection in 2020, he's one of the least popular senators in the country, given his position in leadership. And there's actually a lot of people who think he could end up voting for this bill that in the past he has helped derail, in large part to give him a kind of bipartisan victory for his own reelection campaign. So we could end up in a situation where when this comes up on the floor for a vote next week, he says aye with a bunch of other Republicans. So that seems like the ultimate sign of how much the politics around criminal justice reform

have changed in the past few years, that Mitch McConnell may now find himself needing to personally support this bill in order to survive in his own very red home state. Yeah. I mean, it's one of the great surprises of the last two years, I think, on Capitol Hill. You know, I was talking to Senator Dick Durbin today. How important was having President Trump on board to this? It's been very helpful with the Republican votes. We had good support on the Democratic side going in and some support on the Republican side,

but the president's support has added to that. Do you think that President Trump gave Republicans and Senator McConnell the additional cover he needed to have a vote on this? I think it made it easier. In a weird way, Trump is one of the elements that's made this possible, or is that overstating it? It's like Nixon to China. When you have a president do something that seems out of political character, it can sometimes make an historic difference. And in this case, with the encouragement of a Senate law, I might add, the president has really helped us.

That's kind of like the ultimate Democratic underhanded compliment to, on the one hand, praise Trump for doing this, and in doing so, to compare him to Richard Nixon. Right. I mean, that was about as nice as Dick Durbin, I think, is ever going to get towards Donald Trump. Nick, thank you very much. Thanks so much for having me. After the break, the bipartisan spirit on Capitol Hill Tuesday didn't last long.

The only thing I think we can agree on is we shouldn't shut down the government over a dispute. And you want to shut it down. You keep talking about it. The last time, Chuck, you shut it down. No, no, no. And then you opened it up very quickly. I don't want to do what you did. Twenty times you have called for, I will shut down the government if I don't get my will. We'll be right back.

Here's what else you need to know. Okay, thank you very much. It's a great honor to have Nancy Pelosi with us and Chuck Schumer with us. And we've actually worked very hard on a couple of things that are happening. Criminal justice reform. On Tuesday, a televised meeting in the Oval Office that was intended to be a bipartisan photo op featuring President Trump, Vice President Mike Pence, Senate Minority Leader Chuck Schumer, and House Minority Leader Nancy Pelosi devolved into a combative spectacle as the group publicly squabbled over a deadline to fund the government. We have a proposal that Democrats and Republicans will support to do a CR that will not shut down the government.

We urge you to take it. And if it's not good border security, I won't take it. It is very good border security. And if it's not good border security, I won't take it. It's what the border... Because when you look at these numbers... During the meeting, the president refused to agree to fund the government without financing for a border wall, even if that meant a government shutdown.

You know what I'll say? Yes. If we don't get what we want, one way or the other, whether it's through you, through a military, through anything you want to call, I will shut down the government. Okay, fair enough. And I am proud, and I'll tell you what, I am proud to shut down the government for border security, Chuck. The Times reports that after Pelosi left the Oval Office and returned to the Capitol, she

told aides that for the president, the border wall was, quote, like a manhood thing for him, as if manhood could ever be associated with him. And the Times reports that a major cyber attack on the Marriott hotel chain, revealed in October to have collected personal data on 500 million guests over a four-year period, was part of a broader intelligence gathering operation by the Chinese government.

Such attacks on hotels, healthcare companies, and U.S. government agencies appear to be an attempt by China to build a sophisticated database that would allow it to identify American spies and the Chinese citizens they interact with. The revelation of China's role in the cyber attack comes at an already tense moment in U.S.-China relations as the two countries engage in a trade war and the U.S. prepares to issue new indictments against Chinese hackers, whom it regards as a growing national security threat.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.