People Across the Country Are Waking Up to the Problems with Mass Incarceration. But Not These 29 Democrats.

The past few years have seen a heightened interest in criminal justice reform. Communities that have been negatively affected by mass incarceration have known for a long time how the “war on drugs” and “war on crime” failed to keep them safe. But social media, cell phone cameras, and media campaigns have brought the problems to light for many more, inspiring cities to start electing more progressive DAs and states to pass creative efforts to move beyond incarceration and toward rehabilitation.

If only Congress got the memo.

On Friday, the House of Representatives passed the so-called Community Safety and Security Act, which will, of course, not make communities any safer. The bill creates an unnecessarily and harmfully overbroad definition for “crime of violence” in US criminal code in response to a recent court ruling.

A coalition of groups including the The Leadership Conference on Civil and Human Rights, the ACLU, the AFL-CIO, the Justice Policy Institute, and the NAACP wrote to Congress in opposition to the bill:

The bill is overbroad and includes in its list of crimes of violence a number of offenses that have no element of violence at all. Burglary, for example, is included in the list of crimes of violence though it is defined as the unlawful or unprivileged entry into a building. Likewise, the bill lists coercion through fraud as a violent felony though no element of violence is part of that criminal offense. Simple assault is also considered a violent crime even in circumstances where the underlying act was a merely a push or shove.

The bill dangerously expands the definition of violent crime which fuels overcriminalization. Every existing definition of a crime of violence in federal law or for federal purposes includes as an element the use, threatened use, or attempted use of force — see 18 U.S.C. §§ 924(c)(3), 3156; Uniform Crime Reports. But H.R. 6691 omits this crucial and basic requirement. The consequences are dangerous, especially in the hands of a Justice Department which has displayed a general tendency to use a sprawling definition of violent crime to justify more arrests and prosecutions and longer prison sentences. The residual clause, while expansive, at least had the requirement that the crime of violence be classified as a felony that involves a substantial risk of force against person or property, but even that requirement has been removed by H.R. 6691.

A new definition of crime of violence is unnecessary, even in light of Dimaya. The Court in Dimaya held that the residual clause is unconstitutional but left in place subsection (a), which defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Moreover, this bill seeks to undercut a number of Supreme Court decisions, and in doing so, impacts more than just the “crime of violence” definition.

HR. 6691 could have significant exclusionary effects on federal criminal justice laws and legislation. Carelessly expanding the definition of a “crime of violence” will change criminal procedures under current law and lead to more people being unnecessarily detained both pre-trial and post-conviction. This goes against bipartisan efforts to reform the criminal justice system. For example, proposed legislation such as H.R. 4833 (Bail Fairness Act); H.R. 5043 (Fresh Start Act); and H.R. 5575 (Pathway to Parenting Act) bars people convicted of a crime of violence from pretrial release considerations, expungement of crimes, and receiving visitors. Expanding the definition of a crime of violence would exclude some of the very people meant to be helped by these bills.

It passed 257 to 142. 228 Republicans and 29 Democrats voted for it. 138 Democrats and 4 Republicans voted against it. Two Democrats voted present: Pete DeFazio (OR-04) and Zoe Lofgren (CA-19).

The 4 Republicans were Justin Amash (MI-03), Morgan Griffith (VA-09), Raul Labrador (ID-01), and Thomas Massie (KY-04).

And here are the 29 Democrats: Ami Bera (CA-07), Cheri Bustos (IL-17), Salud Carbajal (CA-24), Matt Cartwright (PA-17), Jim Costa (CA-16), Charlie Crist (FL-13), Henry Cuellar (TX-28), John Garamendi (CA-03), Josh Gottheimer (NJ-05), Alcee Hastings (FL-20), Bill Keating (MA-09), Ron Kind (WI-03), Annie Kuster (NH-02), Conor Lamb (PA-18), Dan Lipinski (IL-03), David Loebsack (IA-02), Michelle Lujan Grisham (NM-01), Stephen Lynch (MA-08), Stephanie Murphy (FL-07), Tom O’Halleran (AZ-01), Jimmy Panetta (CA-20), Collin Peterson (MN-07), Jared Polis (CO-02), Jacky Rosen (NV-03), Raul Ruiz (CA-36), Kurt Schrader (OR-05), Kyrsten Sinema (AZ-09), Tom Suozzi (NY-02), and Mike Thompson (CA-05).

It seems noteworthy that this list includes two Senate candidates (Rosen and Sinema) and two gubernatorial candidates (Lujan Grisham and Polis).