The Dark-Horse Policy Reform That Has Both Obama And Some GOPers Optimistic

11/10/2014 04:07 pm ET | Updated Nov 11, 2014
  • Ryan Grim Washington Bureau Chief, The Huffington Post
  • Sam Stein Senior Politics Editor, The Huffington Post
  • Matt Ferner National Reporter, The Huffington Post

With Democrats holding the White House and Republicans controlling both chambers of Congress, it's been suggested that the odds are slim of any major legislation becoming law over the next two years.

But officials in the Obama administration and on Capitol Hill say there is one issue that may have enough cross-party appeal to break through the logjams. That issue is criminal justice reform.

"It is on my list of things that are in the sphere of the possible," said one top Obama administration official who discussed the president's legislative priorities on condition of anonymity. "We are going to work hard at it ... Putting a bipartisan imprint on sentencing reform would be a big achievement."

President Barack Obama has long sought solutions to address the nation's soaring rates of mass incarceration. And the administration official described a "hopeful" mood in the White House regarding the chances of serious reform by 2016. Part of the reason for cautious optimism is that some high-profile Republicans share the objective. Libertarian-leaning Sen. Rand Paul (R-Ky.) has been open about his concern with racial disparities in incarceration rates. Paul, who is likely to run for president in 2016, may reason that it's in his interest to have a major legislative victory along with bipartisan credentials under his belt.

Last session, Paul's office alone introduced five bills dealing with everything from scaling back mandatory minimum sentencing to civil asset forfeiture reform to shielding medical marijuana businesses from federal intervention. Most recently, Paul teamed up with Sen. Cory Booker (D-N.J.) to introduce the REDEEM Act, aimed at reducing the national prison population and rolling back draconian sentencing rules.

“I think there is potential for greater gains with Republicans and Democrats on these issues,” said a senior aide to Paul who requested anonymity in order to speak freely. “Sen. Paul is going to push very hard for criminal justice reform in the next Congress.”

Talks between Paul and Democratic staff, including the office of current Senate Majority Leader Harry Reid (D-Nev.), have continued throughout the term and are still ongoing. A senior Democratic Senate aide said he expects the incoming Judiciary Committee to take the lead on the matter when Congress reconvenes.

"This is actually something that could get done," said the aide. "Sentencing reform and even maybe [rewriting] the Voting Rights Act [could happen], primarily because it is something Rand Paul seems to want to get done."

Booker, meanwhile, told HuffPost that he's gotten indications from GOP senators that Sen. Mitch McConnell (R-Ky.), who will take over as majority leader next year, is taking the issue seriously.

"I've gotten really good signs from my colleagues that this is something that there is a commitment [to do]," said Booker. "Just from Mitch McConnell's strong statements over the last several years, I'm pretty confident that this is something he wants to lead on."

Should lawmakers act on criminal justice reform, it would be a rare instance of Congress responding to voters. During the 2014 midterm elections, voters approved sweeping drug and criminal justice reform measures in multiple states, setting the stage for what may prove to be even more significant policy shifts over the next two years and beyond.

“This Election Day was an extraordinary one for the marijuana and criminal justice reform movements,” said Ethan Nadelmann, executive director of the Drug Policy Alliance, during a call with reporters after last week's elections.

In Alaska, Oregon and Washington, D.C. this past Tuesday, voters legalized recreational marijuana. A medical marijuana measure in Florida received 57 percent of the vote, though it fell short of the 60 percent support it needed to pass. There were smaller-scale victories for marijuana decriminalization in local jurisdictions in Maine and New Mexico, while voters in California and New Jersey approved reforms to prison sentencing and bail policy that are expected to benefit thousands of low-level drug offenders annually.

"There is a surprising confluence between deficit hawks and progressives who are focused on the social justice angle, particularly when it comes to nonviolent minor drug offenders,” said Ben LaBolt, a former Obama White House spokesman who dealt with the judicial issues portfolio.

This point was perhaps most clearly demonstrated in California with the passage of Proposition 47, a measure that reclassified many low-level offenses from felonies to misdemeanors. Prop. 47 is expected to result in the downgrading of an estimated 40,000 felonies a year in the state.

Support for Prop. 47 came from an incredibly wide cross-section of liberal and conservative figures and groups -- everyone from Sen. Paul to musician Jay-Z to former Republican House Speaker Newt Gingrich to the American Civil Liberties Union to the California Teachers Association to the Los Angeles Chamber of Commerce, the largest business chamber in the state of California.

“We had backing from conservative Christian leaders, Democrat leaders, national conservatives and liberals in support as well,” said Lenore Anderson, executive director of Californians for Safety and Justice, a nonprofit group and a key backer of Prop. 47, during a call with reporters Wednesday. “It really demonstrates that both conservatives and liberals support this.”

The United States is home to just 5 percent of the world’s population, but a full 25 percent of the world’s prisoners. The harsh and lengthy sentences for nonviolent drug possession or distribution crimes have helped bolster that figure. In 1980, there were roughly 40,000 drug offenders in U.S. prisons, according to research from the Sentencing Project, a prison sentencing reform group. By 2011, the number of drug offenders serving prison sentences had ballooned to more than 500,000 -- most of whom were not high-level operators and did not have prior criminal records.

As of last week's elections, four states and the nation's capital have legalized the recreational use of marijuana, and 23 states have legalized marijuana for medical purposes. While pot still remains illegal under federal law, attitudes are clearly changing rapidly. Rep. Earl Blumenauer (D-Ore.) has even predicted that before the end of the decade, the federal government will legalize weed.

There's evidence to suggest that Blumenauer's optimism may not be totally unfounded. Last year, the federal government allowed Colorado's and Washington's historic marijuana laws to take effect. This February, President Obama signed the 2014 farm bill, which legalized industrial hemp production for research purposes in the states that permit it, and the first hemp crops in U.S. soil in decades are already growing. And in May, the House of Representatives passed bipartisan measures attempting to limit Drug Enforcement Administration crackdowns on state-legal medical marijuana shops, as well as agency interference in state-legal hemp programs.

“The outcome of this year's midterm elections set the stage for an even bigger year in the 2016 presidential election, but we're likely to see some steps forward next year, as well,” said Mason Tvert, communications director for the Marijuana Policy Project, a key backer of multiple state cannabis legalization measures. “We could very well see states adopt laws that decriminalize possession of small amounts of marijuana, or even laws that make marijuana legal and regulate it like alcohol."

Like Paul, some House Republicans are trying to make sure the party rides the changing wave of public opinion rather than be drowned by it.

Reps. Dana Rohrabacher (R-Calif.) and Justin Amash (R-Mich.) have both sponsored House amendments seeking to prevent the federal government from prosecuting people for simply following their state marijuana laws. Tax reform advocate Grover Norquist, meanwhile, has been a vocal supporter of giving legal marijuana businesses the same federal tax breaks that other businesses already receive.

Rep. Jared Polis (D-Colo.), a vocal supporter of drug policy reform who has sponsored multiple bills seeking protection for state-legal marijuana businesses and advocating full-scale federal legalization of the drug, said he expects criminal justice reform to remain a topic of interest in the House even as the chamber becomes more Republican-leaning.

“I think Congress will make some progress in catching up with allowing states to have flexibility in their drug policies in the coming years. There’s strong rank-and-file support on both sides on this issue,” Polis said. “But the challenge will be Mitch McConnell and [House Speaker] John Boehner [(R-Ohio)], who have not yet given indications about whether they themselves are willing to accept progress in this direction.”

While McConnell has said he’s against legalizing marijuana, he does have one of the country's few active hemp pilot programs in his home state of Kentucky. The hope among advocates is that exposure to the new laws in Oregon, Alaska and D.C. will persuade McConnell and other lawmakers to soften their positions.

Blumenauer, a sponsor of the marijuana business tax break measure as well as multiple federal marijuana reform bills, said that last week's marijuana wins at the ballot box have set the stage for “bigger and faster progress” in drug policy reform.

“From hemp in conservative Kentucky, legal recreational marijuana in diverse states like Colorado, Alaska and Oregon to legal marijuana in the White House’s own backyard, the movement to end the drug war -- through changing policies around drugs or their associated crimes -- is gaining speed like few other movements,” Blumenauer said.

"We have Republican partners on virtually all of this marijuana legislation, and then the new president and a better Congress is going to be elected in 2016," he continued. "So I truly think the sky’s the limit over the next four years.”

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