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U.S. Sen. Chuck Grassley believes he’s earned his bona fides on criminal justice reform.
As chairman of the Senate Judiciary Committee, the Iowa Republican sponsored the First Step Act, a sweeping criminal justice bill that made a number of reforms aimed at reducing recidivism and improving conditions in federal prisons.
Now as ranking member of the committee, he’s teaming with the chairman, Illinois Democratic U.S. Sen. Dick Durbin, to tackle sentencing reform.
However, he may not be willing to go as far as a broad coalition of justice reform advocates who want to eliminate the federal sentencing disparity between crack and powder cocaine, which they point out has disproportionately impacted people of color. Under a 1986 law, those convicted in federal court of possessing small amounts of crack faced the same sentences as those possessing 100 times as much powder cocaine
Grassley co-sponsored legislation that changed that 100-to-1 sentencing ratio for crack vs. powder cocaine to 18-to-1, and says he’s not unwilling to consider further changes. However, he believes other factors — recidivism, addiction and violent crime — must be considered in reforms.
Reforms must be “fair and just, but prioritize public safety,” Grassley said in a Judiciary Committee hearing earlier this summer.
“I think he's scratching at the right set of concerns — public safety being the first one,” said Patrick Purtill, director of legislative affairs for the National Faith and Freedom Coalition, which advocates for free market, limited government and public policy consistent with Christian values.
However, the disparity had increased the federal prison population and costs, as well as “unintentionally created racial disparities in federal sentencing.”
Citing a poll showing nearly three-quarters of Iowa voters favor eliminating the sentencing disparity, Purtill believes data and public opinion are on the side of the coalition, which is part of the Justice Action Network. It includes groups as diverse as the American Civil Liberties Union and the American Legislative Exchange Council, associations representing prosecuting attorneys as well as criminal defense lawyers and faith-based groups.
The Justice Action Network has endorsed the Equal Act, which would eliminate the sentencing disparity. It has been approved by the House Judiciary Committee 35-6.
That bipartisan support is consistent with the findings of a poll commissioned by the network that found 74 percent of Iowa voters, including 70 percent of strongly conservative voters and 68 percent of former President Donald Trump voters, support the Equal Act.
That doesn’t surprise Tim Head, executive director of Iowa Faith and Freedom Coalition. It shows, among other things, he said, that momentum for bipartisan criminal justice reform hasn’t waned since Trump signed Grassley's First Step Act.
“When 74 percent of Iowa voters support this common-sense, bipartisan criminal justice reform legislation, it’s not just sound policy, it’s smart politics,” according to Head, who said the support was “frankly a number that I wouldn't have predicted.”
But the Equal Act doesn’t have that level of support in the Senate, Grassley said. Attempting to eliminate the disparity would jeopardize the likelihood he and Durbin can get the 60 votes needed to bring the justice reform bills to the floor. Among Republican colleagues, it’s a non-starter, he said.
“Does that mean that there's not some possibility for compromise? I would be open to that, but I'm going to have to get enough Republicans to go along to make sure we don't scuttle the other good provisions we have,” Grassley said.
He’s aware that in 2017 the Iowa Legislature reduced the state sentencing disparity for crack and powder cocaine from 10 to 1 to 2.5 to 1. However, he doesn’t see that as relevant to the congressional discussion.
Winning support for sentencing reform has become more difficult because of increases in crime in a number of cities, Grassley said.
“The environment isn't quite as good now as it was” when he was able to get the First Step Act passed after four years of work, Grassley said.
Grassley and the Justice Action Network come armed to the debate with data. To Grassley, it shows that crack cocaine and powder cocaine offenses differ in terms of violence and the likelihood offenders commit additional crimes in the future.
He cites the U.S. Sentencing Commission, which found weapons were involved in 38.9 percent in crack cocaine cases compared with 18.4 percent in marijuana and powder cocaine cases. It also found that overall “crack cocaine offenders had more serious criminal histories than any other group of drug traffickers.”
Purtill counters that with a National Institutes of Health report that found that crack cocaine use itself is not a cause or predictor of violence once demographic factors are controlled for.
The sentencing commission also found, however, that “crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of 43.8 percent.”
That in itself is not a reason to continue the disparity, Purtill argued. “Recidivism rates writ large are terrible,” he said.
Purtill credits Grassley's First Step Act with addressing prison programming in ways to break the recidivism cycle and advocates for doing more in prison and during supervised release to encourage better behavior, such as reinvesting the savings services that will reduce recidivism, such as mental health and substance abuse treatment.
“That’s geekspeak for just saying ‘increase public safety’ because obviously, the less recidivism we have, the less crime we're going to have, the more public safety we're going to have,” Purtill continued.
Removing the sentencing disparity does not prevent prosecutors from seeking penalties when crack cocaine offenses involve weapons or violence, he added.
Although optimistic about prospects for his justice reforms, Grassley acknowledged the looming challenge is “dealing with all the other things that are on the agenda right now and have been all year.” He anticipates Democratic Senate Majority Leader Chuck Schumer will give Durbin and him time to debate and pass their package this fall.
“But with the progress of negotiations and floor time and all the other stuff that's in the news more often than this is, I think it could be delayed into 2022,” Grassley said. “But if we get it done even a year from now, it would be quite an accomplishment.”
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