Criminal justice reform might be the only issue that can put the Koch Institute, the Heritage foundation, and former White House green jobs czar Van Jones in the same room.
The Charles Koch Institute hosted a panel discussion last week on Capitol Hill that brought together arch-conservatives and avowed liberals to discuss the prospects for criminal justice reform.
The title of the event, "Reaching the tipping point," alluded to the hope among criminal justice reform advocates that public opinion and organized advocacy might finally be reaching the critical mass necessary to compel change at the federal level.
Jones, also a CNN host and senior fellow at the Center for American Progress, was sitting in the audience and came forward during the question and answer session.
"This feels good," Jones said, surveying a panel that included a senior legal fellow from the Heritage Foundation and a director at the conservative Texas Public Policy Foundation. "If you had told me 10 years ago that the only place we could have bipartisan agreement would be this issue, I would have thought you were crazy."
Congress passed twenty years ago the Violent Crime Control and Law Enforcement Act of 1994, the largest crime bill in the history of the United States, by a wide, bipartisan margin. The act was only the biggest of a wave of tough-on-crime laws that were added to the books in the ‘80s and ‘90s.
Advocacy groups have since then tried, mostly in vain, to chip away at those laws. However, in the last couple of years an unlikely coalition of legislators and interest groups has formed to give the issue increased momentum.
"Today we aren’t suffering from being too lax on crime," the Koch Institute’s William Ruger said. Rather the United States is suffering from an "overcriminalization epidemic."
The Koch brothers, whose prolific campaign spending against Democrats and President Obama once led Harry Reid to call them "un-American" on the floor of the Senate, have quietly been funding criminal justice reform issues through their various organizations.
For example, Koch Industries recently awarded a major grant to the National Association of Criminal Defense Lawyers to fund indigent criminal defense.
The grant won praise from unlikely corners.
"There’s a justice gap," U.S. Attorney General Eric Holder said in an interview with the Marshall Project. "And to hear that the Koch brothers would be contributing money in that way is something that I think should be applauded."
The Koch brothers aren’t alone on the right. Last year, the American Legislative Exchange Committee (ALEC), another liberal bête noir, came out in favor of allowing more judicial discretion in mandatory minimum sentencing structures.
And the National Rifle Association worked with Families Against Mandatory Minimums (FAMM) to roll back a harsh mandatory minimum law on gun crimes in Florida.
Reform-minded conservatives say the current criminal justice system has led to profligate spending, federal overreach, and misplaced priorities.
"The one thing we can agree on is, even if you think drugs are a bad activity that should be punished in some way, the pendulum has swung too far and we’re sentencing the wrong sort of people for way too long and taking up valuable real estate that could go to people who are more deserving," Heritage Foundation senior legal fellow John Malcolm said.
The system has resulted in a swollen federal prison system. For the second year in a row, the Justice Department Inspector General identified reforming the federal prison system as the top challenge facing the agency.
The federal prison population has increased 3.2 percent a year over the past 10 years and is now operating at nearly 140 percent of its capacity. Maintaining the federal prison system takes up 30 percent of the Department of Justice annual budget.
Malcolm and Marc Levin, the director of Right on Crime, both identified the rising number of federal crimes and lack of mens rea protections as other areas that conservatives should be concerned about.
Liberals who are more concerned with the racial disparity in the criminal justice system than overspending are still more than happy to work with conservatives.
"We could call it the Bureau of Prisons Budget Reduction Act for all I care as long as it gets the same results," the ACLU’s Laura Murphy said at the event.
Murphy, the director of the ACLU’s Washington legislative office, worked for 17 years to get Congress to reduce the nearly 100 to 1 sentencing disparity between crack cocaine and powder cocaine offenses.
Her fellow panelist Molly Gill, the government affairs director of FAMM, said her organization worked for years without much progress. But now a flurry of legislative activity has them more hopeful at the prospects of major reform than they have been in years.
From the libertarian wing of the GOP, Sen. Rand Paul (R., Ky.) has been working across the aisle to push a package of criminal justice reform legislation.
Paul has introduced five bills this year, many of them with Democratic co-sponsors, dealing with mandatory minimum sentencing, restoring voting rights for felons, sealing non-violent juvenile records, and civil asset forfeiture reform.
"Going into next year, it’s going to be one of [Paul’s] priorities to move forward aggressively and get weight behind those bills," a Paul aide told the Washington Free Beacon.
The aide said Paul staffers have been meeting with Senate Majority Leader Harry Reid’s staff on the issue. Part of those discussions has been on whether to roll the bills into one package or keep them separate, the aide said.
"It’s going to take another comprehensive bill because of how deep of a hole we’ve dug," Gill said.
Sen. Dick Durbin (D., Ill.) has introduced a sentencing reform bill, and Sens. Sheldon Whitehouse (D., R.I.) and John Cornyn (R., Texas) introduced another bill that would require the Bureau of Prisons to assess and reduce the risk of recidivism among prisoners.
These efforts aren’t moving forward unopposed. In a letter sent earlier this year, 29 former high-ranking officials, including two U.S. attorneys general and three Drug Enforcement Agency administrators, wrote to Senate leaders urging them to oppose the Smarter Sentencing Act.
"We are deeply concerned about the impact of sentencing reductions of this magnitude on public safety," the letter reads. "We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines, and PCP."
However, public opinion appears to have tilted against the tough-on-crime laws. A 2014 Reason-Rupe poll found 77 percent support for ending mandatory minimums for all non-violent offenders.
Another poll this year by the conservative Texas Public Policy Foundation found that 79 percent of Texans said low-level drug offenders should be placed on parole, not sent to prison. Since 2005, Texas has closed three adult prisons and now has its lowest crime rate since 1968.
On the state level, politicians have taken notice. Pew Research Center analysis showed that, between 2009 and 2013, 40 states took some action to ease their drug laws.
Most recently, Californians passed Proposition 47, a measure that dropped numerous felonies to misdemeanors. The proposition enjoyed wide support from conservative and liberal groups, including former Speaker of the House Newt Gingrich and Jay-Z.
On the campaign trail, politicians’ fear of being branded "soft on crime" appears to have partially dissipated.
"It used to be a ten-foot-pole, but now we see more and more candidates who view [criminal justice reform] as a positive," Levin said.
Levin pointed to Republican Georgia Gov. Nathan Deal, who repeatedly touted his state’s crime reforms on the campaign trail this year.
"Our criminal justice reforms are going to be major, positive things for our state," Deal told a crowd during his campaign. "It’s saving us money, it’s changing lives and it’s keeping us safer. And I want to be here to carry those things to logical conclusions."
While Deal’s Democratic opponent hit him on almost all of his other policies, criminal justice reform was left off the table.
For a Republican-controlled Congress looking to prove that it can get things done and a White House that’s often addressed criminal justice issues, the opportunity for common ground exists in 2015.