During Judge Ketanji Brown Jackson’s confirmation hearing, Republicans reiterated many of the lines of attack they have used on Democrats when it comes to the issue of crime.
“The Biden administration is committed to this soft-on-crime policy,” said R-AR Senator Tom Cotton. “Liberal judges who are more sympathetic to the perpetrators than to the victims are a big part of the problem.”
†[The best way to deter people viewing child porn] is to put their asses in jail,” Senator Lindsey Graham (R-SC) said while criticizing Jackson’s sentencing decisions in such cases.
At the hearing — and increasingly everywhere else in recent months — many have embraced a “straight against crime” stance. That comes in response to an increase in violent crime during the pandemic and corresponding voter concerns about the.
“Under the one-party system of Democrats in Washington, American families are facing … a crime crisis,” House Republicans posted in a tweet in March† “Crime Is Rising Across the Country,” Senate Republicans highlighted in February† “The results of the Democrats’ soft-on-crime policy are clear.”
The rhetoric in Jackson’s hearing and in wider GOP posts appeared to be a departure from the focus on criminal law reform which the party only had in 2018, when the majority of Senate Republicans supported changes in sentencing for nonviolent offenders under the First Step Act. At the time, the party was eager to show that it had made progress on an issue that grew out of Congress’ attempts to crack down on crime decades ago. (Many of these efforts specifically excluded violent or sex offenders whom Jackson was falsely accused of having an easy time with.)
There are some Republicans now hesitant to evangelize criminal justice reforms, proponents say, as the rise in crime has become a GOP talking point. According to an study of the Criminal Justice Councilhomicide rates in 22 major cities in 2021 were 5 percent higher than in 2020 and 44 percent higher than in 2019.
“I think your average conservative, or average Republican, may have supported the First Step Act, but I feel like the average conservative has pulled back from where they were,” said Clark Neily, a senior vice president of legal studies. at the Cato Institute.
However, experts stress that the most aggressive moments in the hearing are no indication of how open some Republicans still are to important but limited criminal justice reforms.
Just last week, 10 Republicans co-sponsored the Equal Act, legislation that would reduce inequalities in sentencing between crack cocaine and powder cocaine. The legislation — which would equalize penalties for the two substances — has yet to be considered on the floor, but could be passed with the GOP backing it has. Currently, punishment standards are much stricter for crack cocaine, an inequality that disproportionately affects black offenders.
“The fact is, anyone who works in DC politics understands that Congressional hearings essentially exist for political greatness, and that’s about it,” said Jason Pye, a director of the criminal justice reform group. Due Process, which lobbied Republicans for the First Step Act. “There are plenty of Republicans in the Senate who will vote for these kinds of bills because they think it’s the right thing to do.”
There is a Republican division over reforms
The rhetoric at Jackson’s hearing revealed divisions within the party over the issue and the issues Republicans don’t want to address through reform.
For years, the party has been split on the subject with senators like Tom Cotton (R-AR) opposing virtually any reform while others like Sens. Rand Paul (R-KY), Mike Lee (R-UT), and Tim Scott (R-SC) have led efforts to reform the punishment for nonviolent drug offenses and police reform.
“There are over 20 Republicans out there who are up for grabs, but there will always be those who will always oppose you. You start with the list of no votes on these bills,” says Pye.
These differences were fully apparent during the hearing, with Cotton, Senator Josh Hawley (R-MO) and Senator Ted Cruz (R-TX) being among the most vocal critics of Jackson’s criminal record over child pornography cases. (While Cruz voted in favor of the First Step Act, it took significant adjustments to eventually do so.)
And even among those who support reform, such as Lee and Graham, a focus on child pornography cases reverberated where they insisted on violent crimes and sexual offenses involving children. While they support changes in sentencing for non-violent drug offenders, they take a very different approach to violent crime.
“Even in the First Step Act, you had a lot of carveouts,” said Brett Tolman, the head of the conservative advocacy group Right on Crime. “They spent a lot of time provoking violent crime, child porn.”
Drug conviction reforms that push Republicans back didn’t come up as often, because they didn’t address the committee members’ main line of attack on Jackson’s conviction. It is noteworthy, however, that a significant group of Republicans continue to support them. Those who co-sponsor the Equal Actinclude, for example, Sens. Paul, Rob Portman (R-OH), Thom Tillis (R-NC), Lindsey Graham (R-SC), Lisa Murkowski (R-AK), Susan Collins (R-ME), Cynthia Lummis (R-WY), Shelley Moore Capito (R-WV), Jerry Moran (R-KS) and Richard Burr (R-NC).
Republicans are less vocal about reform in general given the focus on crime rates, Tolman says. At the state and local levels, many Republican officials have also pushed back on progressive prosecutors, policies such as changes to bail and reduced prosecution for minor offenses.
“I think they often worry that if…the crime continues to increase, nobody will want to blame them,” said Jillian Snider, policy director of the criminal justice and civil liberties team at the R Street Institute.
There is also the Trump factor. During his presidency, Trump’s support of the First Step Act helped get Republicans who were on the fence on board. Without his advocacy on this issue, some lawmakers are probably less open to this idea.
“It’s certainly true that when President Trump was in office and told McConnell to put it on the floor, he helped us and gave us votes that we wouldn’t have had otherwise,” Pye says.
There is still interest in (some) two-pronged criminal justice reform
Recent progress in criminal justice reform indicates that there is still a bipartisan interest in narrower policies.
Republicans’ support for the Equal Act – a fairly limited bill – is still significant. It’s not clear yet if the legislation will make any headway in the Senate, though it now has ample Republican support.
In the past, Republicans have also been open to highly targeted policies.
The First Step Act, for example, only allows some federal inmates to shorten their sentences. Other more ambitious reforms have since failed.
Earlier discussions on police reform failed as Democrats pushed for a more comprehensive bill that abolished qualified immunity, the legal protections that police have that protect them from liability. Republicans, meanwhile, were not interested in removing these protections.
The Next Step Act, legislation sponsored by Senator Cory Booker (D-NJ) to reduce mandatory minimums for nonviolent drug offenses and provide more police training, has also failed to gain traction.
Republicans’ openness to the Equal Act indicates that there is an enduring dual potential for reform, even if the party’s general rhetoric doesn’t always reflect this support.