POLITICS
12/19/2018 06:00 pm ET

The Surprising Opponents Of Criminal Justice Reform

Some Republicans refuse to let go of tough-on-crime politics.
Sen. Marco Rubio (R-Fla.)
Zach Gibson via Getty Images
Sen. Marco Rubio (R-Fla.)

WASHINGTON ― One of the most notable things about the criminal justice reform bill passed by the Senate on Tuesday was the broad, bipartisan coalition of senators who supported it. But perhaps equally noteworthy are the names of some of the Republicans who didn’t.

Twelve GOP senators voted against the bill, including vocal “tough on crime” guys like Sen. Tom Cotton (R-Ark.) and John Kennedy (R-La.). But the list of Nos included some surprising names as well: Marco Rubio of Florida, Ben Sasse of Nebraska, and Lisa Murkowski of Alaska.

The bill’s opponents’ overall objection was that the legislation would let too many bad guys out of prison too soon. During a contentious GOP caucus lunch last month, Cotton even warned his colleagues who supported the bill that they would suffer the consequences at the ballot box, evoking fears of the infamous “Willie Horton” ads in the 1988 presidential election.

“At the end, I just wasn’t convinced that some pretty dangerous people could utilize this to limit their sentences,” Rubio told HuffPost on Wednesday.

The centerpiece of the bill directs the Justice Department to create a new risk assessment program in federal prisons, which hold fewer than 200,000 of the nation’s 2 million prisoners. The Bureau of Prisons is supposed to use cutting-edge analytics to gauge the likelihood that a given prisoner will commit new crimes after release. Lower-risk offenders are supposed to be able to earn credits for earlier access to home confinement or halfway houses or supervised release instead of a prison cell.

The bill’s drafters excluded several categories of offenders that would not be eligible, but opponents like Cotton continuously complained that they had left out different categories of dangerous offenders, such as fentanyl pushers.

“Rather than have a list of offenses that did not qualify, I think the better approach would have been to have a list of offenses that did qualify for the program,” Rubio said.

The Florida Republican, who has bucked GOP orthodoxy in the past on issues like immigration, faces less political pressure than others ― he’s not up for re-election until 2022. But while he initially voted to advance the bill on Monday, he said it did not address concerns about its sentencing provisions from law enforcement groups in his state.

Unlike the push for criminal justice reform across the country, Florida is one of the few states that has actually moved to accelerate the war on drugs. In 2017, state legislators imposed even harsher mandatory-minimum sentences for opioid users and dealers.

Sasse was another unexpected opponent of the bill, echoing concerns this week that it would “release thousands of violent felons very early” from prison. His stance was all the more unusual given that Deb Fischer, his fellow home state GOP senator, endorsed the legislation after visiting “numerous law enforcement and judicial officials in Nebraska.”

Sasse, another unexpected opponent of the bill, worried that it would “release thousands of violent felons very early.&
ASSOCIATED PRESS
Sasse, another unexpected opponent of the bill, worried that it would “release thousands of violent felons very early.” 

Sasse also broke with several other Libertarian-leaning senators, like Mike Lee of Utah and Rand Paul of Kentucky, who openly supported it. And he bucked the conservative billionaire Koch brothers, who worked for years to pass criminal justice reform in Congress and whose influential donor conferences Sasse has addressed several times in recent years.

Mark Holden, who chairs the group Freedom Partners, which is the political umbrella group of the Koch brothers, said he hoped to change Sasse’s mind on future reforms.

“He seemed comfortable with it. Apparently, he was not comfortable,” Holden said of Sasse’s vote this week. “I think that hopefully ― Ben’s a good guy ― I’m looking forward to having a discussion with him about the bill. Hopefully, we’ll have him on board for the Second Step Act.”

It’s possible that Sasse’s opposition to the bill may have had to do something with his re-election chances. As a consistent Trump critic, he’s likely to face a GOP primary in 2020.

Murkowski also raised eyebrows by voting against the bill. She’s one of the Senate’s most moderate lawmakers, opposing Obamacare repeal and judge Brett Kavanaugh’s nomination to the Supreme Court. But she said in a statement this week that the legislation was being rushed and deserved more consideration. She declined to comment on Wednesday.

Murkowski’s staff initially seemed sympathetic to the bill, according to criminal justice reform advocates who met with them. They guessed the senator had issues with the legislation that were more specific to her state. Alaska recently passed its own contentious prison reform bill, for example, with mixed results. The state’s crime rate increased in 2016.

Alaska’s other GOP senator, Dan Sullivan, also voted against the bill citing concerns about “the complexities Alaska is facing with criminal justice reform, collectively known as SB91 in Alaska, along with skyrocketing crime rates and an evolving opioid and drug crisis.”

Most of the Republicans who voted no voted for this outdated Willie Horton narrative, fearing they would be punished politically and that it would somehow reflect poorly on them. Erin Haney of the criminal justice reform advocacy group #cut50

Still, lots of conservatives supported the Senate bill and its sentencing reforms ― including hard-edged lawmakers like Ted Cruz of Texas, David Perdue of Georgia. The Fraternal Order of Police and the International Association of Chiefs of Police also backed the reforms. Moreover, it probably wouldn’t have been passed without the endorsement of President Donald Trump, who is expected to sign it into law before the end of the year.

“What resonated with the president was the whole idea that it was so unfair for people who committed mistakes, who paid their debt, and who still can’t get a job, can’t get a loan,” Holden said. “That was something he really latched onto ― talking about what a rigged system it is.”

Advocates of the legislation hailed Tuesday’s vote for changing the politics on the right surrounding the issue of prison reform.

“Most of the Republicans who voted no voted for this outdated Willie Horton narrative, fearing they would be punished politically and that it would somehow reflect poorly on them,” Erin Haney of the criminal justice reform advocacy group #cut50 told HuffPost. “I think we saw a lot of people who we had a lot of high hopes for fall back into that narrative. But at the end of the day they lost.”

CONVERSATIONS