New Bill Aims to Curb Prison Populations – But Can It Get Past Jeff Sessions?

The Reverse Mass Incarceration Act aims to decrease prison populations without raising crime rates. But it's got a roadblock: the Attorney General

The Reverse Mass Incarceration Act of 2017 flips the logic of Bill Clinton's 1994 crime bill on its head. Credit: Soe Zeya Tun/Reuters

There's a debate raging in Trump's Washington that many lawmakers had thought was nearly settled over how to reform the nation's criminal justice system so the hundreds of thousands of people locked up annually over nonviolent crimes can leave their cells and re-enter society. While a bipartisan effort was picking up steam in Congress last year to reverse the tide of mass incarceration, things got off to a rocky start for reform advocates at the start of this Congress when the president tapped one of his most vocal campaign supporters to lead the Department of Justice, former Alabama Senator Jefferson Beauregard Sessions III.

Sessions recently penned an op-ed for the Washington Post that turned many heads on Capitol Hill because in it he decries Obama-era policies as soft on crime while calling for the nation to clamp down, yet again, on non-violent drug offenders. In response, two Democratic senators unveiled legislation on Wednesday called the The Reverse Mass Incarceration Act of 2017, which flips the logic of Bill Clinton's 1994 crime bill on its head: Instead of the stick approach of incentivizing states to lock tens of thousands of people up, this proposal extends a carrot – cash, to be more precise – to incentivize states to decrease their prison populations. But now the bill's supporters have the uphill battle of convincing Sessions to reconsider his position.

"I mean the challenge with our attorney general is he may have an opinion but it's not based on facts. It's not based on data. It's not based on the truth," Democratic Sen. Cory Booker tells Rolling Stone. "The reality is state after state after state have demonstrated that they can lower their prison populations using innovative ideas. And lower their crime rate at the same time. So his sort of draconian, retribution- and punishment-focused criminal justice – outdated opinions – really fly in the face of experience. Really fly in the face of data. Really fly in the face where both the left and the right are moving in this country."

In Georgia, Republican Gov. Nathan Deal has garnered bipartisan praise for pushing an effort to give judges more discretion in sentencing, providing more and better education resources to inmates and opening up opportunities for prisoners to get a high school diploma, not just a GED. Booker and other bill supporters want to see ideas like that flourish in other states.

"The federal government gave billions and billions of dollars worth of incentives to massively expand the population on state levels – bribing the states to instigate hyper-incarceration, mass-incarceration," says Booker, who still lives in economically depressed Newark, New Jersey. "And now this is in many ways saying, 'Hey, we're going to give you a similar amount of resources and incentives to undo this morally corrosive and shameful mass incarceration in our country.'"

The bill's other sponsor is Democratic Sen. Richard Blumenthal, who used to be a federal prosecutor in his home state of Connecticut. He says that he, like Sessions, also used to be a tough-on-crime advocate when it was in vogue for politicians to embrace that mantra in the seventies, eighties and nineties.

"He and I both lived through it. We saw that it doesn't work. We thought it would and it doesn't," Blumenthal tells Rolling Stone. "I was an advocate and we need to learn from experience. Mandatory minimum seemed like a great idea at the time, the toughest prosecutors I know think differently now. They've seen how in practice, it doesn't work. Things that seem viable and valuable in theory, sometimes in practice simply don't work."

Blumenthal says the fact more than two million people are locked up in the U.S., making it the highest prison population in the world, is disturbing, wrong and the reason their bill is needed so that states are encouraged to use ingenuity at the local level to slash their incarceration rates.

"Well, our criminal justice system is desperately in need of reform, linked in a certain way to the drug abuse issues," Blumenthal says. "There's just a lot of people in prison right now who are in no way dangerous, and there are a lot of people on the streets who are very dangerous. And we need to make sure that the dangerous people are behind bars and that we enable a better path for the non-dangerous people."

The legislation stems from a study by the Brennan Center for Justice that showed by flipping the old equation on its head would actually see the sharp decrease in the prison population that politicians of all stripes have been advocating.

"So in the past, generally speaking, these large federal grants have been given out to actually increase the prison population," Inimai M. Chettiar, the Director of the Justice Program at Brennan Center, tells Rolling Stone. "For example, in the 1994 Crime Bill. The federal government created an incentive in which if states passed stricter sentencing laws they would provide states with money to build new prisons. So that's a very common example that's used. So this would do the reverse of what most of the federal funding has gone to do historically."

The proposal would allow states to apply for federal grants every three years if they can prove their prison population dropped by seven percent, and that wasn't coupled with a spike in crime. They calculate the proposal could lead to a 20 percent decrease in the U.S. incarceration rate in a decade.

"We believe that what [Sessions] has been arguing for in terms of moving back to tough on crime laws is misguided and that's not the way to reduce crime," she says "And again, one of the things that this bill does it is helps reduce crime and imprisonment together. It very much explains how you don't need mass incarceration to keep down crime. So it's in a way a push back to what Attorney General Sessions has been doing."

But there's a Sessions-sized dark cloud hanging over the effort, but some of the attorney general's former Republican colleagues think they see a chink in his armor and they say criminal justice reform remains a priority, even though the effort hasn't come up much in this new Congress.

"It's very high on my agenda," Republican Sen. Chuck Grassley, the chair of the Senate Judiciary Committee, tells Rolling Stone as he walks to a meeting on the stalled health care bill. He's eager to discuss anything but that policy which has been clogging up the Senate and keeping the GOP from moving on to bipartisan issues like criminal justice reform. "And if we can get White House support, and the White House can get it brought up in the Senate, then I think we'll pass one. The House wants to pass one."

But that's the hard part: With Sessions serving as Trump's attorney general, it may be impossible to get the president to overrule his AG. Sure, a Republican Congress could send a Republican president a bill that's opposed by his attorney general, and Trump could sign it over Sessions' protests. That's unlikely though, because in this hyper-partisan Washington the parties often work as cohesive units and Sessions will likely be at the table for any criminal justice reform effort. But Grassley, a friend of the attorney general, thinks he may be able to convince him to meet lawmakers in the middle.

"He's opposed to it. But I don't think there's a conflict between his wanting to maintain mandatory sentencing and what we try to do, because I believe in mandatory sentencing, but also believe that there's some unfairness in it," Grassley says. "The unfairness in it is taken care of by our sentencing reform where people get a second bite at the apple, so that a judge at a second step can look to see if there's unfairness about it. And that unfairness can be then judged independently from mandatory sentencing. And so I would like to impress upon Senator Sessions, now [Attorney] General Sessions, that there's no conflict between what he wants to do and what we want to do."

Still, the supporters of this new bill say they're going to try another angle: The economic and argument.

"This is one of the most cruel self-inflicted wounds the country has ever done – while the rest of nations are using infrastructure dollars to build new high-speed rails, build new ports, build new roads and bridges. America's infrastructure crumpled in every way except for the astonishing investments we made in building prisons – with a new prison being built every ten days between 1990 and 2005," Sen. Booker says. "So it's time that we reverse that, on the right, on the left, Christian and evangelical, fiscal conservatives, libertarians, liberals, moderates, people from every background now realize that these policies were wrong and misguided, and morally bankrupt. And we as a country, we need to with the same kind of enthusiasm, work to reverse these policies as we did when we implemented them."