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Real Change Could Be Coming To How The Government Sentences Nonviolent Drug Offenders

President Obama’s using his executive power to free nonviolent offenders, and activists say they see a real, meaningful shift with top GOP opponents. But how much will get done before the presidential race takes over?

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WASHINGTON — The way the federal government prosecutes nonviolent drug offenders could be changing in significant ways as early as this summer, advocates of fewer mandatory minimum sentences and ending the war on drugs now believe.

Sen. Chuck Grassley, the chair of the Senate judiciary committee, has long advocated tough mandatory-minimum sentences for drug offenders and ever stricter drug laws that carried huge bipartisan support in the 1990s. But now advocates see signs that the Iowa Republican is opening up to criminal justice advocates after years of dismissing their cause as reckless and naive.

Winning over a veteran law-and-order politician like Grassley would be a huge win for the "smart-on-crime" movement backed by many younger senators, Libertarians, social justice progressives, and the White House. Not only would it mean legislation could move through the Judiciary Committee, but other Republicans still wary of criminal justice advocates also might be convinced it's time to change policies if someone like Grassley does.

The possible movement comes at a time when aides to President Obama say long-promised commutations for dozens of nonviolent drug sentences could come in "the next few weeks," according to the New York Times.

Grassley's Judiciary Committee aides have been holding regular, closed-door meetings with Democratic staff for the committee working on legislation that could add the Republican's name to those calling for changes to federal mandatory-minimum sentencing guidelines, BuzzFeed News has learned.

"Chairman Grassley's staff has been working with other offices on a possible criminal justice bill that encompasses a range of issues," Beth Levine, spokeswoman for the judiciary committee's Republican members, told BuzzFeed News in an email. "Provisions of the Cornyn bill are a part of that discussion as well as front-end solutions such as safety valves and reductions in mandatory minimums in certain situations."

The bill referenced by Levine would allow nonviolent offenders to earn early release from federal prisons by participating in anti-recidivism programs. The bill doesn't go anywhere near as far as advocates would like. They want mandatory-minimum sentences, which they say strip judges of their power to hand down sentences based on the specific circumstances of a crime, eliminated entirely or almost entirely. On top of that, many in the movement want the war on drugs effectively ended, with an end to long prison terms for nonviolent drug possession.

But the bill does highlight the bipartisan movement around criminal justice. The named sponsors are far apart ideologically and geographically — Sen. Sheldon Whitehouse is a liberal Democrat from Rhode Island while Sen. John Cornyn is a Texas Republican.

Grassley's aides said the senator's interest in a negotiated bill dates back to at least a year ago. In a pair of floor statements, one in April 2014 and the other in February, Grassley said on the Senate floor he was interested in perhaps lowering some mandatory-minimum sentences while creating new ones for "such offense as arms export control violations, financial crimes, and child pornography possession."

Last week, Grassley's office told IJ Review "front-end solutions" like sentence reduction are part of the Senate conversation.

Grassley has continued to distance himself from the more ardent supporters of ending the war on drugs, while also taking pains not to reject the critics of mandatory-minimum sentences completely.

"I have different views than [Sen. Rand] Paul and those guys," Grassley told Politico in April. "They'd make you believe [people are incarcerated] for smoking one pot [sic] or one 'roach.' … But they're not; they're in for a lifetime of violent crime."

"But I know there needs to be reform," Grassley said. "We need this."

Some on the conservative side of the criminal justice movement recoil at Grassley's idea of new or lengthened mandatory-minimum sentences for white-collar criminals; they say the sentences are extremely expensive without deterring much.

But the fact that Grassley is even talking about talking about reducing some mandatory minimums is a big shift, advocates say. The White House, Libertarians, and progressives now all believe Grassley could make a deal, ending his uniform opposition to reductions in drug sentences.

Grover Norquist, president of Americans for Tax Reform and top national voice on the Libertarian side of the debate, echoed other advocates reached Monday when he said Grassley is showing signs of reaching out. He credited efforts to change sentencing policy changes in the states, where a coalition of progressives and Libertarians have pushed Republican-led states to adopt the policies advocates hope to reproduce in the federal system.

"It's unfair to ask elected officials to lead parades into the unknown," Norquist said. "Somebody has to run up ahead to flash lights on the highway to show them the bridge isn't out. And some of the outside groups have been doing that."

Republicans have reduced sentences in states like Texas and seen crime continue to fall — and haven't been booted out of office in criminal justice–focused primaries in the process.

"The conversation is safe," Norquist said. "It is safe to have the conversation."

Allied groups have been pressuring Grassley at home in Iowa through grassroots efforts and op-eds running in the state's largest paper, Des Moines Register. Ben Stone, former executive director of the Iowa branch of the American Civil Liberties Union, wrote a Register op-ed in May about what he said were the debiliating administrative costs faced by many low-level drug offenders. The ACLU is one of the largest progressive organizations partnering with Libertarian groups in the criminal justice movement.

Stone said Iowa as a state has been slow to adopt the idea espoused by advocates that the tough-on-crime policies of the 1980s and '90s might not work, and that fact could help explain why Grassley remains as publicly wary of it as he is.

"Iowa has been a very, very slow state to this game," he said.

The efforts to lobby Grassley mirror similar efforts to rally House judiciary chair, Rep. Bob Goodlatte — the other man seen by advocates as keeping the growing bipartisan energy from resulting in new federal legislation — to the cause. Proponents see Goodlatte as still very skeptical of reducing mandatory minimums but open to new perspectives.

Running alongside these Hill efforts are meetings between progressives and Libertarians across Washington, some at the White House hosted by top administration officials, to plan a combined strategy. The Obama administration has expressed a great deal of interest in making criminal justice the next legacy-defining effort of Obama's second term now that Obamacare is secure and so-called fast-track trade authority has passed over Democratic objections. The trade effort brought the White House and leaders of the congressional GOP together in a way rarely seen during Obama's term in office, and Obama aides see a path to criminal justice paved in the bipartisan goodwill from the trade fight.

"There has been a lot of talk over the last six months about the possibility of working across party lines to implement some important reforms to the criminal justice system," White House press secretary Josh Earnest told reporters on June 25, just before Republicans would deliver fast-track trade authority to Obama. "The president has hosted conversations with Democrats and Republican members of Congress here at the White House. I would anticipate that future discussions like that will occur. And I think that certainly is a ripe opportunity for us to work in bipartisan fashion and do something that would be really good for the country."

The window for meaningful legislative changes to the federal criminal justice system is tightening every day, say advocates. With the 2016 campaign season sucking up more and more of the political oxygen in Washington every minute, there isn't much time before there's no time left for criminal justice.

And that brings it back to Grassley.

"These things would move very quickly if Grassley would say, 'OK, I'm ready to do all of it," said one senior criminal justice advocate. No one in the movement sees that happening, and Grassley's compromise demands could turn them off entirely. But they're growing more and more convinced Grassley is ready to go.

"He has a fantastic political mind," the advocate said. "He's really good at sensing the political winds and he really feels like criminal justice reform is having its moment and he wants to be helpful."

Evan McMorris-Santoro is the White House correspondent for BuzzFeed News.

Contact Evan McMorris-Santoro at evan@buzzfeed.com.

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