Report from Governmental Affairs

117th Congress has opportunities for bipartisan criminal justice reforms

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Lady Justice


In the final days of the 115th Congress, lawmakers promised to continue to build on their successful passage of the landmark bipartisan First Step Act of 2018—long-overdue improvements to the federal criminal justice system. Two years later, however, the 116th Congress adjourned without fulfilling that pledge. It was not for a lack of trying; in fact, hundreds of criminal justice bills were introduced but ultimately died at the end of the last Congress.

The good news for those seeking change is that most of the problems were specific to the 116th Congress, and the 117th presents new opportunities for progress. Cautious optimism comes with understanding some of the reasons that reforms did not happen and how the new Congress and 2021 are expected to be different.

While there was no singular obstacle for criminal justice legislation in the 116th Congress, delays—both planned and unforeseen—were a primary culprit. For starters, it convened during a record-setting 35-day partial shutdown of the federal government, which was quickly followed by major efforts to raise the debt ceiling and repeal the automatic spending cuts known as sequestration. Congress also attempted in vain to complete all fiscal year 2020 funding bills on time—a feat accomplished only four times in the past 43 years.

Meanwhile, the House and Senate judiciary committees placed all new criminal justice legislation on hold for most of 2019 until they had carried out planned oversight of the FSA’s implementation. By year’s end, the House and Senate were dominated by impeachment proceedings that ended with the president’s acquittal in February 2020. Then a global pandemic reached American shores. And by the August recess, most major legislative activity had stopped until after the election.

Delays were not the only obstacle, however. National events such as the pandemic also grabbed the spotlight, forcing a shift in priorities. For example, the focus on immediate problems caused by the pandemic postponed consideration of larger, more systemic reforms. And although George Floyd’s tragic death while in police custody in May forced the country and both chambers of Congress to reexamine issues of racism and bias in law enforcement, partisan differences on specific reform proposals prevented their passage before the 116th Congress finally adjourned.

There were isolated bright spots for criminal justice reform advocates, however. Congress passed the Fair Chance to Compete for Jobs Act of 2019, a new law that reduces emphasis on federal job seekers’ criminal backgrounds, as well as other legislation improving regulation of the Department of Defense program through which state and local law enforcement obtain military equipment. The House also passed additional legislation focused on the criminal justice system during the pandemic. And while the Senate would not entertain those proposals, it did concur with the House on the need for increased funding to support implementation of the FSA and Second Chance Act reentry programs to help people make successful transitions from prison to their communities at the end of their sentences.

Prospects for additional significant criminal justice reform have improved this Congress. The distraction of national elections is behind us; COVID-19 vaccines and a return to a new normal are helping lawmakers refocus on broader permanent criminal justice system reforms; and widely supported bipartisan bills introduced in the 116th Congress provide a road map for “next step” legislation. It is also encouraging that House and Senate champions of bipartisan reform have returned this Congress, including Sen. Chuck Grassley, R-Iowa, whose previous efforts were a cornerstone of the FSA’s success.

The American Bar Association remains committed to the fight for comprehensive criminal justice system improvements.

Among other issues, the ABA supports a range of decarceration proposals; improvements to conditions of confinement, including protecting the confidentiality of prisoners’ emails with their attorneys; and strengthening reentry programs.

The ABA also seeks to reduce draconian sentencing for nonviolent offenses and to end mandatory minimum sentences.

In addition, the ABA works to prevent racism or bias in the criminal justice system and opposes collateral consequences for convictions that bear no rational relation to the underlying offense. And the ABA opposes incarceration or the loss of substantive rights for people who pose no danger or flight risk but lack the means to satisfy money bail, fees or fines.

This report is written by the ABA’s Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the U.S. government.

This story was originally published in the Feb/March 2021 issue of the ABA Journal under the headline: “Recommitting to Reform: 117th Congress has opportunities for bipartisan criminal justice reforms”

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