When Donald Trump was elected president, he made criminal-justice reform a signature issue, tasking his son-in-law, Jared Kushner, with driving the White House’s legislative effort. Despite saying he supported reform, over eight years President Obama had never been able to get it done (and, to be honest, didn’t devote much effort to trying to do so). There was strong bipartisan support behind criminal-justice reform, and yet, a number of law-and-order Republicans understandably had serious concerns.
Once again, I offered my amendment excluding violent criminals from the bill’s coverage. I spent hours in person and on the phone negotiating with fellow senators and with Jared and the White House legislative team. After considerable resistance, both Kushner and Senator Durbin agreed to my amendment. Within hours of my amendment’s incorporation into the draft legislation, I announced my support for the bill and, the very next business day, Senate leadership announced that it would finally be brought to the Senate floor for a vote. As I said at the time, “With these changes, this bill gives non-violent offenders a better chance at rejoining society while keeping violent offenders behind bars.”
The First Step Act, with my amendment, came to a vote on the floor of the Senate and passed overwhelmingly by a bipartisan majority of 87–12. Of the eighty-seven votes in favor of the legislation, thirty-eight were Republicans, and forty-nine were Democrats.
The First Step Act mirrored, in significant respects, similar legislation that the Texas Legislature had passed, reducing punishments for non-violent drug offenders and shifting law-enforcement focus to violent criminals instead. And in Texas, the results had been strongly positive.
I was proud to play an integral role in the passage of such crucial bipartisan legislation at the federal level. As I said at the time, “Too many young men, particularly young black men, face long mandatory prison sentences for nonviolent drug offenses; this bipartisan legislation corrects that injustice. And it will focus our law enforcement resources where they are most needed: preventing violent crime.”
In my view, there is a profound and crucial distinction between violent and non-violent crime. Far too many young men, and young African-American and Hispanic men in particular, historically have faced long prison terms for the non-violent possession of drugs. For those struggling with addiction, there are better, more effective strategies, often dealing with treatment and rehabilitation, that can produce real results.
Violent crime is different. With violent crime, I have comforted too many grieving families mourning the loss of a child or loved one who was brutalized at the hands of a depraved rapist or killer. And I, for one, was not willing to look a mother in the eyes and tell her that I had any part in releasing early the murderer who took her child’s life.
President Trump signed the First Step Act into law, and I joined him in the Oval Office with an amazing coalition of criminal-justice reform advocates, evangelical and faith-based leaders, conservative and libertarian think-tank leaders, and law-enforcement leaders. At the White House signing ceremony, I praised the spirit of compromise that governed the bill’s drafting process. Because we were willing to compromise, we were able to write good legislation that keeps Americans safe while making sure that justice is properly served. That kind of compromise is what the legislative process is designed to accomplish. It’s picture proof of why lawmaking should be left in the hands of legislators rather than judges.
The way the First Step Act passed, through policy, legal and constitutional arguments about what is right, appropriate, and just, through a consideration of facts and data and evidence about what is most effective in deterring crime and preventing recidivism—all of it was done through the legislative process. That is how our system is supposed to work. Elected legislatures exist to consider and to weigh policy arguments and to reflect the wishes and values of the voters who elected them. When unelected judges seize issues of the criminal law and mandate that violent criminals receive lesser punishments, they are going against both the constitutional structure and their responsibility as judges.
CHAPTER 8
DEMOCRACY AND THE ELECTORAL PROCESS
Dressed in a white pantsuit, Bo Derek bowled barefoot and with both hands. She was with us in an Austin bowling alley on Election Day 2000, lending a surreal quality to an otherwise extraordinary day.
I had just spent the last year and a half on the George W. Bush presidential campaign, where I had been part of the policy team. And, most importantly (for me at least), I had met Heidi on the campaign, my then-girlfriend and soon-to-be wife. Our boss, Joshua Bolten, was the campaign’s policy director. He would later go on to become President Bush’s head of the Office of Management and Budget and then chief of staff. Josh, it so happened, was dating Bo Derek, the legendary beauty who had starred in the movie 10. Decades later, she retained her movie-star radiance.
Josh was a bowling enthusiast. Although we had worked around the clock for the entirety of the campaign, on election day, nobody wants or needs a policy team, and so Josh took us out bowling with his girlfriend. The women didn’t get what the big deal was, but every man on the team, all of us in our twenties, was rendered speechless. And it would’ve been better if I had remained speechless because as that day and evening proceeded, we began an election-night party that kept us out until the not-so-wee hours of the morning.
By 4:00 a.m., we all stood out in the street on Congress Avenue in downtown Austin in a light drizzling rain, and Don Evans, the chairman of the campaign, came out to tell the assembled crowd that there would be no election result that evening. As we were walking home, Heidi asked me, “So, do you think Bo Derek is good looking?” Sober, I can answer that question, but at 4:00 in the morning after many
