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Power Up: Criminal justice reform. It's what's on the table this lame duck session

with Reis Thebault

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In the Agencies

CRIMINAL JUSTICE REFORM IN THE LAME DUCK?: “We definitely think it's going to get done now,” Mark Holden, the vice president and general counsel of Koch Industries, told Power Up in an interview about the prospects of a criminal justice reform bill in Congress's lame duck session starting tomorrow. 

'The First Step Act' Round II: A skinny version of the bipartisan bill authored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that incentivizes prisoners to complete reentry programs and prohibits female inmates from being shackled while in labor, easily passed the House this past May. This week, lawmakers will introduce an amended bill with four additional parts that addresses sentencing reform, prompting Majority Leader Mitch McConnell (R-Ky.) to take a whip count.

Holden outlined the four things (mostly pulled from a bill that Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) co-authored known as the “Sentencing Reform and Corrections Act.") But he added that Congress is still tweaking the final language: 

  1. Eliminate the "924 stacking” regulation making it a federal crime to commit a federal crime while you have a gun. It's something even former attorney general Jeff Sessions agreed should be changed even when served in the Senate. 

  2. Eliminate “three strikes” and you're out mandating that three-time offenders receive a life sentence. 

  3. Expand “the drug safety valve” to allow judges to make an exception for nonviolent drug offenders when it comes to mandatory minimum sentences. 

  4. Make the “Fair Sentencing Act” of 2010, which reduced the sentencing disparity between offenses for crack and power cocaine, so that pre-2010 offenders have the right to retroactively seek a reduction in sentencing.

Holden conceded there is opposition to the bill (ahem, Sen. Tom Cotton (R-Ark.)) but said that ultimately what matters most is that President Trump supports the efforts.  And things will get easier with Sessions, the administration's single biggest obstacle to reform, no longer in the top spot at Justice.

  • On Trump: “The president is on board, so we feel good about that,” Holden told us. “The president is so much in favor of the rehabilitation issue and I'd also say that what he did with Alice Johnson — it's been eye opening for him. I don't think he understood these laws before being in public office,” he added. 

  • On Sessions: Holden said that while he “didn't agree with it,” he understood what Sessions was doing from a “rule of law standpoint” in directed prosecutors to pursue mandatory minimums and the most severe sentences possible. But, he said: “The war on drugs has been a complete and unmitigated failure, in my opinion,” Holden said. “It ruined communities, ruined lives in the process.” 

  • On Jared Kushner: Holden praised the president's adviser and son-in-law for doing “an amazing job of leading on this.” The White House didn't respond to our request for comment on Kushner's involvement. 

  • Holden also named Senate Judiciary Committee Chair Chuck Grassley (R-Iowa), Durbin, Mike Lee (R-Utah), and Lindsey Graham (R-S.C.) as drivers behind the push.

  • Why passing reform could be a win for a "law and order" White House: Look at the data, Holden said: "700,000 people are coming out of prison each year — we want them coming out better, more educated and more skilled . . . This ultimately reduces crime — a big win for all of society and public safety,” he said. 

While they're waiting on federal change, there's been some recent success on the local level:

  • Amendment 4: Voters in Florida passed the Koch and ACLU-backed measure last week restoring the right to voting for felons. In the next election, 1.4 million felons will be eligible to vote. 
  • “Safe Streets and Second Changes:” Holden and Koch Industries started a reentry pilot program in Texas, Kentucky, Florida and Pennsylvania where "a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to rearrest," reported The Post earlier this year. 

Will reform get done?

  • Fraternal Order of Police backing: The police organization endorsed the “First Step Act” and Trump's push to pass the whole reform efforts. 

  • We're hopeful”: “We spend three to four times more per capita each year on incarcerating people than we do on K-12 education in this country . . . Regardless of what happens this year, we'll keep grinding away and hanging around the hoop. but we're hopeful,” Holden said. 


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Following Democratic House gains and Republican Senate gains, The Fix's Aaron Blake analyzes the winners and losers from the 2018 midterm elections. (Video: JM Rieger/The Washington Post)

Following Democratic gains in the House and Republican gains in the Senate, The Fix's Aaron Blake analyzes the winners and losers from the 2018 midterm elections. (JM Rieger/The Washington Post)

On The Hill

ON WINNING THE HOUSE: In the run-up to the 2018 midterms, Democratic strategists plotting ways to wrest control of the House from Republicans prioritized diversity — not only in the candidates they recruited, but in the districts they targeted. That's according to Meredith Kelly, the director of communications for the Democratic Congressional Campaign Committee, who we caught up with about the big win. This conversation has been edited for length and clarity.

(Read our Friday interview here with Kelly's counterpart at the National Republican Congressional Committee.)

Q: Why did Democrats win the House? Which voters came back to the party or came to the party for the first time ?

A: We knew from the beginning . . . there was absolutely nothing predictable about President Trump and, therefore, we had no reason to rely on the fact that his first midterms would be predictable or follow historic norms. So we never anchored our strategy in the national environment or with an expectation that a wind would be at our back. What we did do is aggressively build the largest offensive battlefield in over a decade. We ultimately invested at least $100,000 in over 80 districts. That created multiple paths to the majority. We did not feel as though we could rely only on [districts Hillary Clinton won in 2016] or only the coastal and more diverse states. We knew we needed to have a path to winning open seats, to winning Trump districts, to winning in rural communities and winning from the coast to the south to the heartland. 

Q: What effect did President Trump have on House races?

A: We knew that at any moment Trump can shake things up in a very impactful way, for better or for worse. He's unpredictable and he does have a massive microphone. So, not knowing what stunts he would pull, we wanted to be prepared and have our candidates be as strong as possible and still be competitive no matter what Trump did. We didn't know exactly what his immigration scare tactic would be — but we were prepared for them to close on the topic of immigration.

If you look at how every other race had gone in this two-year cycle — from the Virginia gubernatorial race to the special elections — they always closed with immigration to try to rile up their base and scare people and divide people. In places we thought that'd have a negative impact on our candidates, they had been laying the groundwork with voters that these Democrats supported strong border security that was tough and fair and prioritized keeping Americans safe.

So, when the caravan conversation started happening — in the places it really could have hurt us and scared people —  our Democratic candidates had already laid the groundwork that they could be trusted to keep Americans safe. One good example: In the open seat in New Mexico's 2nd district (which Trump won in 2016), [Democrat] Xochitl Torres Small had been on TV for the final months talking about her approach to immigration and walking along the border . . . So when Trump turned the conversation to immigration, people already trusted her and she's someone who squeaked out a really exciting win. 

Q: It’s widely seen that Democratic losses in the House over the last decade depleted the party’s bench. Were this year’s midterms replenishing for the party?

 Absolutely. I believe that we have elected the most impressive class of Democratic candidates in modern history. I believe that in this class of new lawmakers, there are future senators, there are future governors and there are potentially future presidents and vice presidents . . . These people are young and they are not going anywhere. They're coming to D.C. with the mission to clean up government and get the influence of dark money out of our politics, they're promising to lower the cost of health care, to go after pharmaceutical companies so that prescription drug prices can drop for hard working families and these are not people who are going to go back on their word.

Of those [newly-elected Democrats]: 33 are women, eight are African American, eight are Latino, eight are veterans or CIA officers, four are LGBTQ, two are Muslin and two are Native American. So I actually feel like we played a role that was bigger than flipping the House — I mean, flipping the House was huge, but I do think we injected new strength, personality and expertise into our party that will benefit us for years to come.

Q: Talk about Democrats' messaging on health care.

A: Democrats had a winning and unified message when it comes to health care, and after these 2018 midterms, we should dispel with the notion that Democrats don’t have a message. In every single competitive House race across the country Democrats . . . ran on lowering the cost of health care and prescription drugs, and they also held their Republican opponents accountable for their repeated attempts to repeal the [Affordable Care Act].”

Lawmakers on both sides of the aisle spoke about concerns regarding the elections in Florida on Nov. 11. Three statewide races will be recounted. (Video: Sarah Parnass/The Washington Post)

Lawmakers on both sides of the aisle spoke about concerns regarding the elections in Florida on Nov. 11. Races for Senate, governor and state agriculture commissioner will be recounted. (Sarah Parnass /The Washington Post)

Decisions deferred: In four high-profile races across three southern states, officials are still counting votes, nearly a week after Election Day. In Arizona, mail-in and provisional ballots are being tabulated, as the Senate seat hangs in the balance; in Georgia, the race for governor is still too-close-to-call; and, in Florida, recounts are on for both its Senate and governor contests.

  • Arizona Senate: Republican Rep. Martha McSally has fallen behind her Democratic opponent Rep. Kyrsten Sinema as officials continue to tally mail-in ballots. Election officials say it may be days before a winner is announced in a state where three-quarters of voters cast ballots by mail.
  • Georgia governor: Democrat Stacey Abrams trails her Republican opponent Brian Kemp by nearly 60,000 votes, yet has not conceded the election, saying she wants to wait for all absentee and provisional ballots to be counted. On Sunday, she filed a lawsuit to block counties from tossing out some of those ballots. Kemp’s lead has narrowed in recent days, but he's still above the 50 percent required to avoid a runoff.
  • Florida Senate: As a statewide recount kicked off yesterday, Republican Gov. Rick Scott accused his opponent, Democratic Sen. Bill Nelson, of fraud and filed a round of lawsuits against Democratic election officials. Scott's lead is a razor-thin 12,000 votes and the race could be subject to another recount if the margin remains that tight. A recount is also on in the governor's race, where Republican Rep. Ron DeSantis leads his Democrat Andrew Gillum, though DeSantis has a more comfortable edge than Scott. 
  • Mississippi: No candidate in the state's special Senate election earned more than 50 percent of the vote, forcing a runoff on Nov. 27 between the appointed Republican Sen. Cindy Hyde-Smith and Democrat Mike Espy. Hyde-Smith  drew criticism Sunday for a comment she made about a "public hanging.”

Sights set on oversight: Sitting Democrats, soon to be in the House majority are busy plotting how they'll wield  oversight power, The Post's Felicia Sonmez and Colby Itkowitz reported. Chief on their list of targets could be acting attorney general Matthew G. Whitaker, a loyalist of the president's, though Democratic leaders have brushed off calls to pursue impeachment proceedings against Trump. Here's Felicia and Colby on three items on Democrats' oversight wishlist: 

  • Don't mess with Mueller: “Rep. Jerrold Nadler (D-N.Y.), who is poised to take control of the House Judiciary Committee, said he will call Whitaker as a first witness to testify about his 'expressed hostility' to special counsel Robert S. Mueller III’s Russia investigation. Nadler said he is prepared to subpoena Whitaker if necessary.”
  • All the president's 'enemies': “Another incoming chairman, Rep. Adam B. Schiff (D-Calif.) of the House Intelligence Committee, raised the possibility of investigating whether Trump used 'instruments of state power' in an effort to punish companies associated with news outlets that have reported critically on him, including CNN and The Washington Post.”
  • Hush money: “Democrats on the House Oversight Committee plan to expand their efforts to investigate Trump’s involvement in payments to women who alleged affairs with him before the 2016 election . . . potentially opening up the president’s finances to further scrutiny.”

Global Power

'TURNING AWAY FROM THE WORLD': Even though Trump kept a low profile during his trip to Europe, he still found himself a magnet for criticism, reported The Post's David Nakamura from Paris. Trump didn't hurl any insults at international allies — indeed, he didn't say much of anything — but it was the images, not his words, that elicited outrage. Here's David's take:

  • "[Trump] looked uncomfortable and listless in a bilateral meeting with [French President Emmanuel] Macron, whose sinewy energy stood in stark contrast to Trump’s downbeat expression as the French leader patted him on the thigh.”
  • He was a no-show at a scheduled tour of a military cemetery for Americans, while other world leaders publicly paid homage to those who died on the battlefield. Instead, the president holed up at the U.S. ambassador’s residence, announcing hours later that he had spent a few hours making calls and attending meetings — but not offering to whom or about what.”
  • Why so serious?:"And on Sunday, Trump arrived separately from the 60 other leaders at a World War I remembrance at the Arc de Triomphe. He had no speaking role, sitting stone-faced as Macron railed against the rise of nationalism — a rebuke of Trump’s professed worldview.”
  • 'America First feels like America Alone': “The overall takeaway to many was a president turning away from the world, a man occupying the office of the leader of the free world who appeared withdrawn and unenthusiastic on the global stage.”