How Republicans pivoted: The criminal justice bill headed to President Trump by week’s end is the culmination of a major pivot by the Republican Party from the punitive, law-and-order stance of the 1980s to policies that include cutting prison sentences for some offenders.
The political and ideological shift comes as crime rates have dropped, the opioid crisis has ravaged the country and prison populations, after reaching record highs, are on the decline. Many Republicans are also embracing the legalization or decriminalization of marijuana, which is legal in 10 states and the District.
Most prominently, former House speaker John A. Boehner (R-Ohio) joined the board of a cannabis company earlier this year and favors legalization.
Republicans say the change is a way to right the wrongs of the 1980s — a decade marked by first lady Nancy Reagan’s anti-drug mantra of “Just Say No” — by restoring basic fairness to the criminal justice system. It also has a financial component: Republicans said revising the criminal justice system will save money by moving people convicted of low-level offenses out of prison and into programs that will help reduce the recidivism rate.
It is also a response to moves on the local level, where similar changes passed in some of the nation’s reddest states, including Oklahoma and Texas.
“The cost savings are great, fine. But getting people to a position where they can succeed in life and not ripping apart families? That fits in the basic confines of what conservatism is,” said Jason Pye, vice president of legislative affairs for FreedomWorks, a conservative think tank.
The Senate bill passed on a vote of 87 to 12. It is expected to pass the House, where Speaker Paul D. Ryan (R-Wis.) has expressed his support for the measure, as has Trump. Tuesday’s vote reflected the pressure Senate Majority Leader Mitch McConnell (R-Ky.) faced to move ahead with the bill, most notably from the White House. On the final, overwhelmingly bipartisan vote, McConnell joined 37 Republicans in backing the legislation.
The bill changes the way the federal prison system operates by helping inmates earn reduced sentences and attempts to lower the number of offenders who return to prison.
It overhauls several sentencing laws, including decreasing the “three strikes” penalty for drug offenders to 25 years in prison from life behind bars. The changes only apply to federal inmates, not those in state or local prisons or jails.
It also retroactively reduces the sentencing disparities for people convicted of crimes involving crack and powder cocaine, a change that will affect about 2,000 federal inmates. The discrepancies in penalties for the two drugs fueled the war on drugs and led to a major racial disparity in how drug offenders were sentenced, with primarily young black men serving long sentences for nonviolent crack cocaine crimes, and mostly white people receiving light penalties for powder cocaine offenses.
“A great many fair-minded observers have looked back over the last two decades and have acknowledged that long mandatory minimum prison sentences for nonviolent drug offenders produce injustices and our criminal justice resources are better allocated focusing on violent criminals,” said Sen. Ted Cruz (R-Tex.). “I think that’s a policy change that makes sense.”
Many Republicans have also embraced treating drug addiction as a public health issue rather than one for the criminal justice system, with a realization that authorities cannot arrest their way out of the opioid epidemic. Drug overdoses killed more than 70,000 people last year.
All 12 senators who voted against the criminal justice bill are Republican. The bill’s critics voiced concerns about public safety. Sen. Rob Portman (R-Ohio), who has made fighting opioid addiction one of his biggest issues, said the changes do not mean the party is going soft on crime.
“I think Republicans are still law and order — but the question is, you know, with crack cocaine and powder cocaine in particular, how do you level the degree of consequence? And I think that’s the common-sense thing. And on other drugs, the idea is to get people into treatment and not lock them up,” Portman said.
Those who work with people who use drugs or to change drug laws praised the bill as a step in the right direction.
“I think that it is heartening to see bipartisan action in an era when there’s so little that goes across the aisle,” said Leo Beletsky, a professor of law and health sciences at Northeastern University.
Michael Collins, director of national affairs for the Drug Policy Alliance, said that both parties supported harsh sentences in the 1980s and 1990s, but that Democrats have been quicker and more willing to embrace changes to the criminal justice system. Collins said Republicans have made both progress and been inconsistent on their revamped approach to drug sentencing. Collins said he is heartened that the party recognizes that mandatory minimums and harsh sentencing laws went too far and is moving to change them.
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But he is concerned that there is a push by some in the party to create new mandatory minimum sentences for people arrested for crimes involving fentanyl, a powerful synthetic opioid that has driven the overdose death rate to record levels. Doing that, Collins said, would be akin to restarting the war on drugs.
One difference between now and the 1980s is that the opioid epidemic has primarily affected white, rural communities, though the rates of overdose death are now skyrocketing among African Americans due to fentanyl. Chinazo Cunningham, a professor of medicine at the Albert Einstein College of Medicine and Montefiore Medical Center, said she has treated inner-city addicts for two decades, and has only recently seen attitudes on addiction change.
“I think this much more empathetic, really less punitive approach is really directly related to class and race,” she said. “For us to be discussing opioid addiction as a medical problem and not a criminal justice problem is really consistent with the populations which are affected.”
“I got involved back when it was inner-city stuff and I’m a Republican. So, there were plenty of Republicans interested in the broader issue,” he said.
Former House speaker Newt Gingrich (R-Ga.) said part of the GOP’s shift was because it realized the effect punitive policies had on black communities.
“We also faced a reality that we were wrong on the way we distinguished between crack cocaine and regular cocaine and that it was particularly destructive to the black community,” Gingrich said.
Overhauling the criminal justice system has been one of the top goals of the network aligned with billionaire industrialist Charles Koch and like-minded wealthy donors who typically give to Republicans. The network, which leans libertarian with a small-government, free-market agenda, has pushed for bipartisan support for sweeping policy changes since the Obama administration, advocating for a shift toward prioritizing rehabilitation and reducing recidivism rather than focusing on punishment.
Network officials found a crucial ally in the White House in presidential son-in-law Jared Kushner, who took on prison reentry as a personal effort, informed by the experience of his father, Charles, who was convicted in 2005 of federal charges of tax evasion, making illegal donations and witness tampering and was sentenced to two years in prison.
At a gathering of the network’s biggest donors this summer, senior network officials heralded their efforts to shift the criminal justice system as a fundamental value to the network’s founding principles. Some of the network’s most influential and outspoken donors have taken on overhauling the criminal justice system as their key issue.
Senior network officials consider their approach to an overhaul of the criminal justice system — pressuring lawmakers from both parties and finding allies across the political spectrum — as a blueprint for the network’s future, and key to make lasting imprints on policies, particularly in a divided government.
The bill passed after former attorney general Jeff Sessions, who opposed criminal justice overhaul and worked to undo the unraveling of harsh sentencing policies put in place by President Barack Obama, left office. Collins, of the Drug Policy Alliance, and others have expressed concern about the record of William P. Barr, Trump’s choice to replace Sessions. Barr was attorney general for President George H.W. Bush, when many of the punitive measures that are now being reversed were put in place.
And in October, Deputy Attorney General Rod J. Rosenstein cited the crack cocaine epidemic in the District, and subsequent war on drugs as an example of how to tackle the current opioid crisis.
“While the bill has marginally improved from earlier versions . . . I also remain concerned that reducing sentences for drug traffickers and violent felons is a threat to public safety,” said Sen. Tom Cotton (R-Ark.), who voted against it.
But Sen. Lamar Alexander (R-Tenn.), whose state has been ravaged by opioid addiction, said keeping nonviolent drug offenders out of prison reflects the reality that drug addiction is a public health issue.
“You can’t just deal with our current addiction problem,” he said, by “ locking people up.”