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Popular Criminal Justice Bill Poses Political Risk

Grassley, left, and Leahy confer at Judiciary Committee. (Tom Williams/CQ Roll Call File Photo)

Heading to the Senate floor, beware of Willie Horton.  

That could have been the subtext of criticism of a broad, bipartisan sentencing overhaul advanced through the Senate Judiciary Committee on a 15-5 vote.  

Sen. David Perdue, R-Ga., cited an example of a violent felon in Illinois whose charges included murder and attempted murder, as well as a federal violation of the Armed Career Criminal Act, who could see reduced time under the legislation approved Thursday.  

"In the upcoming months, we’re going to see over 13,000 federal offenders released under the current activity. And if this bill becomes law, we’re adding potentially thousands of repeat, violent felons into the mix, because of the retroactive provisions of this bill," Perdue said. "I can't support this bill, though I do support the effort for reform for non-violent drug offenders."  

Perdue joined fellow GOP Sens. Ted Cruz of Texas and Jeff Sessions of Alabama in leading efforts to amend the criminal justice bill to remove the retroactivity and address the application to certain crimes committed with guns.  

Speaking at the Judiciary meeting, Cruz said more than 7,000 prisoners could be released.  

"None of us know what those 7,082 prisoners did, none of us know what the underlying conduct was that the prosecutors may have plea-bargained down under the existing sentencing laws, and that they may not have entered that plea bargain if they had known that the sentencing laws would be lessened," Cruz said. "When we're seeing violent crime spiking in our cities across the country, I think it would be a serious mistake for the Senate to pass legislation providing for 7,082 convicted criminals potentially to be released early."  

"I think we'll regret this — reducing mandatory minimums," Sessions told CQ Roll Call during a break in Thursday's markup. "It's little appreciated we've already reduced minimum penalties."  

The Alabama Republican, a former federal prosecutor, was one of the five Judiciary panel members to vote against the compromise product.  

"In my opinion, I've studied this and watched it closely for a good long time, we've hit the bottom of crime reduction," Sessions said. "It's already kicking up in big cities. Heroin use is surging."  

Asked if critics of the bill were alluding to the notorious case of Willie Horton, Senate Minority Whip Richard J. Durbin, D-Ill., said, "Of course."  

Horton, who committed felonies while on furlough from a Massachusetts prison, was used in a key ad against 1988 Democratic presidential nominee Michael Dukakis.  

"What I tried to say was whenever you change sentencing guidelines it's a political risk, because none of us can guarantee human nature," Durbin said. "Even after every judge, every prosecutor, every victim has looked carefully, they can make mistakes."  

Judiciary Chairman Charles E. Grassley, R-Iowa, said in a statement the panel's product strikes a balance on minimum sentencing.  

"This bill preserves sentences necessary to keep violent offenders and career criminals out of our communities while addressing over-incarceration concerns and working to reduce recidivism," Grassley said.  

For bill supporters, who are from across the political spectrum and inside and outside the Capitol, the next challenge is protecting the compromise measure if and when the floor time becomes available.

Sen. Sheldon Whitehouse, D-R.I., said the key will be having a core block of bill supporters who can “defeat unwelcome amendments on both sides.”

“Then it’s just a question of burning through them,” he said, “and after the first 10 or 15 and you make people work late. Then the fatigue factor begins to work in the bills favor and the next thing you know, there you are."

Whitehouse anticipated that during a floor debate, bill managers and supporters from both sides of the aisle, such as Majority Whip John Cornyn, R-Texas, and his Democratic counterpart Durbin, would vote down contentious amendments that they might support in a vacuum.  

Matthew Fleming contributed to this report.

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