The Briefing

Documentation and Additional Reading

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New York Times

Senate Passes Bipartisan Criminal Justice Bill

by Nicholas Fandos

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Part

The Briefing

Thursday, Dec. 20, 2018

Tags: Audio

Transcript

This is a rush transcript. This copy may not be in its final form and may be updated.

It's Thursday, December, 20, 2018. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

In a hyper-partisan age, how was bipartisan consensus reached on criminal justice bill?

It doesn't make news these when our political system doesn't work. It makes news when it does. That's why, this week, there is very big news with the passage in the United States Senate of a bipartisan criminal justice bill. This isn't just another bill. This is a major cultural development that demands our attention. We discussed it on The Briefing when it was working its way through the legislative process, knowing that the Senate would consider a specific bill.

Now, we can stand on the other side of the Senate's action on Tuesday night, in which the Senate approved the legislation by a remarkable vote of 87 to 12. Now, think about that for just a moment. That's 99 senators voting, 87 of those senators voting for the same piece of legislation. Now, other than proforma routine matters of moving things through the House and the Senate, there usually isn't this kind of agreement, not on a bill that has to do with an issue of major substance, especially, when that substance comes down to the basic question of right and wrong of crime and punishment.

And what you have reflected in this development is the fact that there is a now, very apparent, bipartisan consensus in the United States that something needs to be done to reform the criminal justice system. Now, remember, we're talking about the United States Congress. We're talking about the Federal Government, so that means this reform has to do with federal law, federal prisons, and federal sentences. But the same kind of logic is going to be working its way state-by-state through all 50 states. Behind this is a huge story, but it's not only a story about history, it is also a story about the fascinating politics of 2018. A politics that sometimes turns out to be unexpected, as well as, noteworthy.

The unexpected nature of this is the precise coalition that had to come together for this legislation to be successful. It was a coalition that had to involve the left, such as the ACLU, and the right, such as the American Conservative Union, that would require the kind of support that would come from law enforcement agencies and from the critics of the American criminal justice system. It would require an overwhelming support from Democrats. It would also require an overwhelming support from conservatives. It would require, not only, of course, the House, and the Senate, it would require an affirmative signing of the law, and before that, powerful political pressure in support coming from the President of the United States. It would take a certain kind of power play within the White House, all of this, absolutely fascinating. All of it revealing how the political system works when the political system does work, and when it works, we need to pay attention to how it worked.

To trace this history, we need to go back a couple of decades. If you go back to the '70s and, especially, into the '80s and '90s, you had State Government, you had local government, but very importantly, you had the Federal Government becoming ever tougher on crime. The reason for that was simple, the nation, especially at the federal level, but also equally true in many of the states, had a criminal justice system, had laws on the books, that were far too lenient. There was one major issue that caught the attention of the nation, and that was an escalating crime rate, especially, when it comes to violent crime.

There was another phenomenon that came up again, and again, and that was the pattern of repeat offenders. The American people were indignant and that indignation got to their elected Representatives and Senators. How in the world could it be that someone could commit these crimes and be, in a stunningly short amount of time, back on the street able to commit even other crimes? In many cases, even worse and more serious crimes.

Another dimension in the background had to do with the war on drugs, and the understanding of the toll that the use, and the sale, and the trafficking, of illegal drugs was having on the nation, as a whole, and on specific individuals, and families. You had States and the Federal Government adopting the so-called Three Strikes Legislation. These were laws that stated that if a repeat offender commits a third classified crime, then there is an automatic life sentence, or in some States, such situations, less than a life sentence, but the effective reality of a life sentence, certainly, throughout most of the adult lifespan. The reality is, however, that there were unintended consequences. The most important of the unintended consequences was the mushrooming of the prison population in the United States. The United States went from being just about in the middle of other nations, and looking at the percentage of the population behind bars, to one of the higher ranked amongst the Western industrialized nations.

The get tough on crime approach did, however, have another result. This was the intended result that was a lowering of the crime rate in the United States, particularly, the violent crime rate. In order to understand the context, we have to move over time from a massive consensus saying that the nation needs to get tough on crime, to a consensus saying that the nation needs, now, to revise its criminal justice laws. We're talking, again, about the federal level. That means that there was a big bipartisan consensus to get tough on crime and, now, there is a big bipartisan consensus to reform the criminal justice system.

Now, you will notice that this is not just some kind of action and reaction. There is no one, now, plausibly arguing when it comes to this legislation for a get soft on crime approach. Rather, there is a consensus that the unintended consequences simply have to be addressed. Those unintended consequences are not only the massive prison population, which, by the way, has the attention of many concerned with federal spending. You're talking about million, and then billions, of dollars adding up to multiple billion of dollars spent in the maintenance of federal prisons. And in many cases, with no hope of anything but infinite escalation.

Now, another issue that is thrown into the mix is the fact that there were many who came to the conclusion that, at least, some of the mandatory sentencing principles that were included in the older legislation actually led to penalties to prison sentences and sanctions that did not fit the crime. And, also, as many Christians involved in prison reform came to conclude, they offered those, in the prison system, no incentive and no hope for any kind of rehabilitation or reentry, successful reentry, into society. Nicholas Fandos, for The New York Times, reporting on the development Tuesday night put it this way, "The Senate overwhelmingly approved the most substantial changes in a generation to the tough on crime prison and sentencing laws that ballooned the federal prison population and created a criminal justice system that many conservatives, and liberals, view as costly and unfair."

Now, from a worldview perspective, at least part of what should have our attention, in that opening paragraph, is the very careful language about creating a criminal justice system that many conservatives, and liberals, view as costly and unfair. That's pretty remarkable in the contemporary context and it deserves our attention that The New York Times used that very expression of conservatives and liberals in a consensus, in agreement, in the opening paragraph. But it came back very quickly. In the fourth paragraph of the article I read, "Even as both sides acknowledge concessions, Tuesday's vote was an important first step for the unlikely coalition of liberals and conservatives." Notice the use of the vocabulary here, liberals and conservatives, in this press story, as if it makes immediate sense, which, of course, it does. That's what gets our attention. There has to be some explanation for why liberals, and conservatives, divided on almost every major issue of importance in this country would be united in this legislation. How united? The House passed similar legislation by a vote of 360 to 59. The Senate's vote was 87 to 12. That's massive.

But from a political perspective, that's not even the most interesting part of the story. The most interesting part of the story is how the Senate actually came to vote. And there, the credit goes to the Administration of President Trump. It was President Trump, himself, who put his personal reputation, and the power of the White House, as the final push for the Senate to approve this legislation. That's also very crucial. This is virtually unprecedented in the history of the Trump Administration, but it's also extremely rare, even as you look to the two preceding administrations, most importantly, the administration of President Barack Obama. Bipartisan efforts with any substance are incredibly rare. Successful coalitions of liberals, and conservatives, are accordingly rare.

Something has to explain this. And that something, from a worldview perspective, is very interesting in itself. That something has to due with the fact that as you are looking at a certain picture, just say, the prison population at the federal level in the United States. Anyone, either liberal or conservative, has to see a problem. But you don't get legislation simply by commonly seeing a problem, you have to somehow move towards a common solution. About five years ago this unlikely coalition began conversation. That conversation was, probably, not too optimistic in the beginning, after all, consider the stakes against this kind of compromise. But nonetheless, behind the scenes, policy efforts were made, think tanks were involved, political leaders gave their assent, a conversation was begun, and eventually conservatives, and liberals, discovered that, not only did they agree on a certain understanding of reality, the picture they were looking at, they began to understand where there were common policy issues on which they could also agree.

Now, that means, that legislation, on any scale like this, requires an extraordinary process of hard work. The average American citizen fails to understand how much of the heavy lifting of legislation is done long before there is even a public consideration of the bill that might come before the House or the Senate, much less both. You're talking about an enormous amount of intellectual investment. You're talking about a lot of political risk. You are talking about people deciding if they can allow their political reputation to be risked on such an effort. That began a half decade ago. Over time, more, and more, legislators began to give permission to enter the conversation. They began to put their own personal reputations on this kind of effort. They began to admit, Democrats and Republicans, that they, and their staffs, were actually in conversation with one another about an issue of this kind of importance.

They then began to look at the kind of data that would be required. They had to agree to, at least, a sufficient extent on the data. They then had to get to the level of policy. Policy is very complex, just consider the Federal Government. That kind of policy work is extremely difficult. That brings up another issue. Much of that policy work, even in the biggest, most important pieces of legislation, is done outside of Congress, even outside of government. There is an entire constellation of think tanks, and research centers, and academic institutes, that begin to look at these questions, and then even move to offering proposed legislation. There are also groups that would simply be identified as lobbying groups that would be involved in this. The average American would be shocked how much legislation, in its original draft, is actually coming from an organization, or an entity, outside of the government process.

But this gets to another issue that intelligent Christians should consider. In politics, perhaps, especially in a situation like this, well, timing is everything. You might have a major piece of legislation that has some kind of possibility of passage now, but might not just a couple weeks from now. Why is that so crucial? Well, what's crucial is that a new Congress is about to be seated. That new Congress is not only going to be different in its partisan composition, a new Democratic majority in the House, a slightly increased slim Republican majority in the Senate, but there are going to be very different players at the table, and every one of them is playing the political system. What does that mean? It means that if you put certain people in a room, at a certain time, something might be possible that is impossible if you put different people in the room, even wearing the same labels, just a few days, weeks, or months later.

Now, there was an understanding that the time was right. That there was an opportunity for this legislation that would likely become far more complicated after January 3rd and the new Congress. The person who, perhaps, more importantly than anyone else, who was convinced of this, was the President of the United States. President Trump signaled, months ago, his support for this legislation, but that wasn't enough. The White House had to use its political muscle to move this legislation across the final hurdle with President Trump providing the kind of energy, and the kind of political support for Republicans, in the Senate, that led them to believe that they were right to vote for this bill, and they would be wrong to vote against it.

The overwhelming majority of 87 to 12 is largely credited, not just to those who worked on the legislation in times past, but, in particular, to President Trump, who, alone, could use the force of the White House to move the legislation into the end zone.

Part

The personal side of politics: Understanding the human factors behind the legislative process

But another note that we need to keep in mind is the personal character of politics. This is inescapable, but yet it is often neglected in our thinking about politics. Politicians are human beings. They operate like human beings. They are incentivized like other human beings. They are concerned and scared like other human beings. And that means that it takes the human dynamic working for this kind of legislation to be successful. This means that there had to be, yet, another maneuver inside the White House to make this legislation successful.

That's why there was another headline in The New York Times yesterday, "Kushner earns praise for backing criminal justice overhaul." This is Jared Kushner, the President's son-in-law. An often controversial figure, who has political influence and an official role within the administration. A situation that unprecedented in American history. How did Jared Kushner end up in the headlines about this story? It is because he used his influence with his father-in-law, the President of the United States, to encourage his father-in-law to put the entire energy of the White House behind the successful passage of this legislation. It was the President's son-in-law who convinced the President that the legislation must be passed before the end of this Congress, which actually means, before the end of this week, or there might be little hope of getting this legislation passed any time in the near future.

As you're thinking about the political system, just remember, it still comes down to politicians who are human beings embedded in webs of relationships. And certain human beings have an opportunity to influence other human beings more than others. In this case, it's hard to overemphasize the influence of a son-in-law upon the President of the United States on an issue like this, in which just about every informed political observer understands, without Jared Kushner, and then without the President, there wouldn't have been this vote in the Senate, in the first place, at this time, much less with these numbers.

As was said about two millennia ago, it really does matter, in the end, who is speaking into Caesar's ear. One final reflection upon this big story. Conservatives, and liberals, had to compromise on this. Conservatives had to compromise their get tough on crime approach in specific situations, in which conservatives are concerned that there will be consequences that will not be good. That there will be some who will be released into society, who might, again, repeat criminal offenses. That is a legitimate concern. Liberals had to give up their absolute demand that there be greater retroactive, or retrospective, effect to these laws when you consider the people who have already been sentenced and are already in prison. Both conservatives, and liberals, had a list of what they did not get in this legislation, but there's simply a final thought here. Remember, that we began with the fact that this legislation was necessary, because of unintended consequences of previous legislation.

Now, a humbling realization is this, the legislation that was just passed overwhelmingly by the Senate, that was previously passed overwhelmingly by the House, that is going to be publicly and eagerly signed into law by the President of the United States, you can count on this, it will have unintended consequences too. That's another realization the Christian Worldview insists upon and underlines. In a fallen world, just about everything we do, certainly everything we do, in as complex a context as criminal justice reform at the federal level, will have unintended consequences, because we are just not smart enough, as human beings, to know what all the consequences will be of what we do.

But, at the same time, human beings have the responsibility to act, to decide, to do something. And in this case, it tells us something indeed, that the United States Congress has so overwhelmingly decided that this is the very least they can do.

Part

Paul Ryan bids farewell: Why the type of elected official he represents is becoming an endangered species

But, next, as you're thinking about unintended consequences, and unexpected outcomes, if you could rewind history, say five years ago, one of the unexpected developments of this week would be the departure of Speaker of the House, Paul Ryan, from that office and from Congress. Why? It is because Ryan was, just about a half decade ago, considered to be the future of the Republican Party, but as history sometimes surprises us, that's not how it turned out.

Paul Ryan was elected to Congress from a district in Wisconsin back in 1999. He will have served 10 terms in the House of Representatives. He has served as Speaker of the House since 2015. He was the Vice Presidential nominee of the Republican Party in the 2012 Presidential election. It's really interesting to put this into historical context. Paul Ryan represents a type that was once well-known in American politics, a blue collar, Roman Catholic, member of Congress from the Midwest, in this case, the Great Lakes Region. That type was a staple of American politics in the last half of the 20th Century continuing into the 21st, but we are now in such a seize in the political change, that the type of individual, represented by Paul Ryan, is becoming an endangered species in the United States Congress. The very man who was elected, just a few years ago, as the chief Representative of the House of Representatives, the Speaker of the House, is now leaving. And he is leaving, as it is understood, in disappointment.

He is also leaving knowing that had he gained reelection from his district, he would have faced, at the very least, a massive political battle within his own Republican Caucus to hold onto the Office of Speaker. Thus, the 54th Speaker of the United States House of Representatives, one of the three most powerful Constitutional figures in the United States government, is leaving politics all together. But there's another big story here. Paul Ryan, elected to Congress in 1999, was elected as what was known as a fiscal hawk. He was elected with a class of Republicans who believed that the greatest danger, domestically, to our nation's future is a spiraling budget, and a towering, ever increasing, national debt, a deficit, that would be an inheritance of bills passed onto generations yet to come.

Now, here's where we need to understand that if you were to go back, to say, the year 2000, that would have been the dominate orthodoxy of the Republican Party, especially, in the House of Representatives. But, now, in such a short amount of time, Paul Ryan is something of an outlier in his own caucus, in his own chamber, in Congress. Here's another crucial political inside with worldview implications that are massive. Just consider the fact that, right now, we have, not one party, but two parties, who are actively complicit in exploding the nation's debt to unsustainable heights. We now have, not just one party, but two parties, who are complicit in an out of control federal budget. We have, not just one party, but we have two parties, that have now decided to make the federal debt, and the spiraling deficit, something of a political non-concern, effectively, kicking the can to successive generations.

But we need to understand that moral implications of that decision. It means that both parties are now, each in its own way, saddling generations yet to come with a debt, a financial burden, that they, themselves, will find almost impossible to pay. This is where Christians have to understand, there are huge moral implications in that act. There is a massive moral responsibility that is now, among both parties, simply being abandoned. It's worse than that when you put it into actual moral terms. This kind of debt, leading to this kind of borrowing, leading to this kind of underfunding of the budget we are spending now, is effectively stealing from our own children and grandchildren. It is a transfer of wealth from the future to the present. Neither party really wants to talk about that, and if you're talking about Paul Ryan, you have to recognize that the political act for which he will be most remembered was, actually, shepherding through the House of Representatives the Republican orchestrated tax cut that, though cutting taxes, did not deal adequately with the federal debt.

The sad thing is, that right now, at the federal level, we have one party, the Democratic Party, that wants government to have as much money as possible, in order to spend as much money as possible. They will actually borrow as much money as possible, in order to spend as much of the future generation's money as possible. Then you have another party, the Republican Party, who doesn't want to spend that much, but isn't actually responsibly dealing with the debt, or the deficit, either. In this sense, the two parties are not equally guilty, but they are both guilty. It can't be good for our nation, if the fiscal hawks, those who really have been, historically, very concerned about federal spending are becoming fewer, and fewer, in Congress.

Part

Why the national debt is a moral problem, not just a fiscal issue

But, finally, just to put some specific numbers on this problem, I turned to Brian Riedl of the Manhattan Institute, in an interview with Eric Boehm. He points out that the numbers are simply staggering. As he said, "The national debt, right now, is $20 trillion and we're going to be hit with an additional $84 trillion shortfall over the next 30 years. That, according to the Congressional Budget Office." Then he says, "That's the rosy scenario." In a way that would get the attention of most Americans, he points out that one way to think about this is that, in order to pay for all of this, your federal tax burden would have to double. Then dealing with entitlement spending, that is spending for programs such as Social Security and Medicare, he points out that the two programs together are going to run a $100 trillion deficit over the next 30 years.

Reporting the kind of math that matches reality, and common sense, but is virtually forbidden in Washington D.C., he says this, "With Medicare, the average couple, retiring today, will have paid $140,000 into the system over their lifetime and will get $420,000 back. When you throw 74 million baby boomers into a system that pays you back triple what you put in, it's going to blow up." But, as we so often point out, even though the math is objectively true, it's the morality that is the problem. Riedl says this, "The challenge, right now, is that when you talk to people about how to solve the long term debt crisis, everyone has their pet theory that is simplistic, easy to understand, and completely wrong," but he concludes, "As long as everyone has their pet theory on how to fix this, no one is going to be willing to endure the real pain it is going to take."

So, I appreciate, that even though he points, repeatedly and importantly, to the math, he understands that the biggest problem is actually moral.

Thanks for listening to The Briefing.

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I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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