The case for criminal justice reform in lame duck

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The following op-ed was co-authored by R Street Outreach Manager Nathan Leamer.


With just a few weeks remaining in the 114th Congress, members are returning to Capitol Hill to take up the business of the American people. Some would argue that Congress should not pass major legislation in this so-called “lame duck” session, and instead leave pending matters—such as criminal justice reform—to the 115th Congress.

There’s two major problems with this argument. First, nothing in the Constitution restricts Congress’ power after an election. Members of Congress are bound to serve their duties to the American people until their final day in office. Second, prior lame duck sessions of Congress have tackled and even defeated some of the most difficult challenges in U.S. history – including, notably, ending slavery.

There were two earlier proposals that might have become the 13th Amendment to the U.S. Constitution if either were ratified. The first, dating to the 1810s, proposed to strip citizenship from any American who accepts a title from a foreign power. The second, dating to just before the outbreak of the Civil War in 1861, ironically would actually have excluded slavery and other “domestic institutions” of the states from ever being subject to interference by Congress, even if it was in the form of further constitutional amendments.

The third attempt for a 13th Amendment was the charm, even if it just barely passed. The Senate passed the amendment in April 1864 by a wide 38-6 margin, but the House failed to meet the two-thirds requirement with a vote of 93 to 65. Not unlike today’s Congress, the vote split primarily along party lines, with Republicans in favor and Democrats against. It was not until after the 1864 election that President Abraham Lincoln saw his avenue for success.

Many of the Democrats who lost their bids for re-election in the 1864 retained their seats until March 1865. Lincoln was able to sway these lame-duck Democrats to vote for the amendment in the name of national unity. The 14 Democrats who had lost their seats, but nonetheless voted in favor of the amendment, put nation first to free a people from bondage. Two years later, on the last day of another lame duck session, the 39th Congress passed the Peonage Act, which codified the 13th Amendment and added debtors’ servitude.

Fast forward 150 years, and this Congress has a prime opportunity to pass bipartisan criminal-justice reform, legislation that otherwise would not be the top of an incoming president’s agenda. While President-elect Donald Trump has been outspoken as the “law and order” candidate, nothing in the bipartisan solutions currently before Congress would undermine public safety. In fact, these proposed changes are based on tried-and-true, data-driven changes made by a number of conservative states. These reforms have saved taxpayer dollars and coincided with reduced recidivism and falling crime rates.

Over the past year, House Speaker Paul Ryan (R-Wis.) and President Barack Obama have both put their support behind this reform package. It would rebalance how the federal criminal-justice system sentences low-level, nonviolent offenders and improve prison re-entry policy. Other supporters of criminal-justice reform include Vice President-elect Mike Pence, who used the vice-presidential debate to call for improving our criminal justice system. Former House Speaker Newt Gingrich (R-Ga.), who also might be taking a role in the new administration, was an early conservative proponent for fixing prison policy. These advocates are now in a prime position to motion for Congress to take immediate action.

In a city where partisan divisions are so evident, the fact that both Democrats and Republicans can work together and have already created a blueprint for balanced approach to criminal-justice reform should be a prime reason to do it now. As Congress negotiates the last funding debate of the year, advocates from both sides of the aisle should take the opportunity to push this important item forward.

President Lincoln understood very well the value of bipartisanship. It’s a lesson this current Congress would do well to adopt.


Image by Pincasso

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