Can Jared Kushner Save Criminal Justice Reform?

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By Justin George

Originally published on TheMarshallProject.org


In 2005, Jared Kushner, the 20-something scion of a leading New York real estate family, boarded a private jet with his mother and other family members.

They flew into Washington Dulles International Airport to meet a man who could help them navigate the next 14 months without the family patriarch. Charles Kushner had pleaded guilty to illegal campaign contributions, tax evasion and witness tampering and had been sent to an Alabama prison camp.

The Kushners were desperate for information on how to stay connected with Charles, more than 1,000 miles away, while coping with his absence. Someone had pointed them to Pat Nolan, a disgraced California politician, caught in an FBI campaign money sting, who had emerged from federal prison after nearly two years to become a leading advocate for prisoner rights.

In an airport conference room, Jared Kushner met Nolan for the first time. Then a lobbyist for Prison Fellowship ministries, Nolan gave the Kushners an insider account of prison conditions and programs and what they needed to do to make sure Charles Kushner received their material and emotional support.

He told them how Charles Kushner could use phone and visitors lists to stay in touch. They discussed how Kushner, an Orthodox Jew, could keep his utensils kosher and whether he would be able to put together a minyan -- a group of 10 Jewish men -- to perform public prayers and religious rituals.

“The families are blind,” Nolan said. “You’re in a maze. You don’t know where you’re going or a way out. It’s a process that deliberately keeps you in the dark and uninformed.”

Nolan gave them hope.

A dozen years later, Jared Kushner, now the president’s son-in-law and trusted advisor, has returned the gift, raising Nolan’s hopes for criminal justice reform, including a bipartisan bill that would emphasize rehabilitation and give judges more leeway to ignore mandatory minimum sentences for drug crimes.

In July, Nolan, now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a leading figure in a conservative reform effort that goes under the rubric Right on Crime, picked up the newspaper and saw that Jared Kushner was well-placed to advance the cause. Nolan reconnected and began sending Kushner memos on how private businesses and church groups could be mobilized to become mentors for released prisoners. Kushner almost always responded within hours.

Nolan’s faith has been bolstered by a flurry of meetings, summits and dinners that Kushner has held in recent weeks with lawmakers and criminal justice reform advocates, leading the more optimistic activists to believe the tough-on-criminals posture of President Donald Trump and Attorney General Jeff Sessions may not mean a complete freeze on federal reforms.

Many wonder whether Kushner has the clout and skill to maneuver any reform to enactment. No new initiatives or official messages of support for reform legislation have come from a White House that has ratcheted up enforcement of drug and immigration offenses.

But given a window into the 36-year-old’s dealing with bipartisan groups seeking reforms, Nolan thinks Kushner, driven by his own personal frustrations with the criminal justice system, stands a chance of success.

“He cares passionately about this,” Nolan said.

On one of the four occasions when Nolan and Kushner have met, someone suggested that money saved from transitioning prisoners to halfway houses or other prison alternatives could be used elsewhere. Kushner quickly interjected: “No we’re not in this to save money,” Nolan recalled. “We’re in this because of human beings involved.”

Nolan isn’t the only criminal justice reform advocate meeting with Kushner or his team at the White House. Craig DeRoche, a Prison Fellowship vice president who oversees public policy and advocacy, has met with Kushner. Mark Holden, general counsel for Koch Industries, met with White House aides in the summer. Koch Industries is owned by brothers David and Charles Koch, influential conservative magnates who support indigent defense, job skills and other reentry programs for the incarcerated, and a rollback of what they see as overcriminalization.

In September, Nolan was among faith leaders invited by Kushner to discuss ideas for a national mentoring program to help released prisoners resettle in their communities -- a measure that would require minimal federal effort.

Later that afternoon, Kushner convened a roundtable of politicians, criminal justice reform groups, religious leaders, employers and others in the Indian Treaty Room in the East Wing of the Eisenhower Executive Building. The conference was called the “Prisoner Reentry Summit” and participants had been sent questions in advance to prepare.

“Please let us know if there are ways in which the President can amplify already successful programs, Federal and private sector/nonprofit, or assist in making a program more effective,” the questionnaire said. “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

In a navy blue suit, Kushner sat in the middle of a long conference table flanked to his left and right by Nolan and Kentucky Gov. Matt Bevin. Others at the meeting included U.S. senators Sheldon Whitehouse of Rhode Island and John Cornyn of Texas, U.S. representatives Chris Collins of New York and Sheila Jackson Lee of Texas, Gov. Sam Brownback of Kansas, Secretary of Housing and Urban Development Ben Carson and Secretary of Labor Alexander Acosta.

Participants spoke for three to five minutes each on a range of challenges faced by released prisoners, including housing, education and employment while Kushner took notes, asked questions and identified next steps, Holden said.

A Department of Justice official who attended signaled that the DOJ was interested in drug courts and programs that could help released prisoners transition back to communities, a surprise to those who feared that Attorney General Sessions’ agenda would only focus on enforcing laws and punishing criminals.

“It wasn’t ‘lock em up and throw away the key,’” Holden said.

(About a week after the summit, the Department of Justice announced that it was awarding more than $9.5 million to juvenile and family drug court programs across the country.)

After two hours and 15 minutes, Kushner thanked participants and said he would read through his notes and mull over the suggestions.

No new initiatives have been launched by the White House since the meeting but other positive signs for reform have followed. Early this month a bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley, Senate Democratic Whip Dick Durbin and several others reintroduced the Sentencing Reform and Corrections Act, a popular bipartisan bill that died last year when it was never put up for a vote. The bill would give judges more discretion at sentencing to skirt mandatory minimum sentence requirements for people with short criminal histories, and its revival was unexpected; Sessions had strongly opposed the bill last year when he was in the Senate.

“Something happened,” said Inimai M. Chettiar, Justice Program director of the left-leaning Brennan Center for Justice. “We don’t know what happened. What I found interesting about the resurrection of this particular bill is that Sessions did a lot of work to kill this bill.”

Sources in the Senate say Kushner has pledged White House support for the bill. Does that mean he believes he has more sway with President Trump than Sessions does? Or has Sessions changed his mind or reached a compromise with Kushner and senators? Attempts to reach Kushner through the White House communications director were not successful. A DOJ spokesman declined an interview request for Sessions.

This month, Kushner invited senators Durbin, Whitehouse, Mike Lee of Utah, Amy Klobuchar of Minnesota and other Senate Judiciary Committee members to his home to discuss the bill and other criminal justice reform topics.

During the dinner, Whitehouse brought up the dilemma that Sessions poses.

“The first inflection point is going to be whether the administration can address Senator Sessions’ opposition to the bill so Attorney General Sessions doesn’t become an opposition to the bill,” the Rhode Island Democrat said in an interview. He declined to say how Kushner responded.

In talks with Nolan, Kushner has indicated that he believes Sessions is more of a proponent of second chance programs than many have been led to believe. Sessions’ Senate record includes sponsoring legislation that reduced the discrepancies for penalties for using crack versus cocaine and the Prison Rape Elimination Act.

“He thinks that the press and the public have misinterpreted where Sessions is coming from,” Nolan said. “He thinks there is a lot more commitment from Sessions to working toward reforms.”

But even if Kushner can hurdle Sessions’ reservations, Whitehouse said, White House leadership will be needed to persuade House Speaker Paul Ryan to guide a bill through a House obstacle course, and convince Senate Majority Leader Mitch McConnell to give the bill floor time and line up votes.

“There are ways to get there but it requires levers to be applied that the White House has and I do not,” Whitehouse said.

Whitehouse blames conservative reform advocates for sabotaging last year’s sentencing bill by insisting it include a provision called “mens rea.” The amendment would have expanded the universe of crimes where conviction depends on evidence of a “guilty mind” -- criminal intent. Democrats feared the expansion of mens rea would make it easier for white collar criminals -- and companies like Koch Industries -- to escape prosecution.

Mens rea has not been folded into the revived Sentencing Reform and Corrections bill but has been reintroduced separately.

(Nolan and others say the bill failed mainly because a few hardline Senate opponents, encouraged by prosecutors, made clear that if leaders brought the bill to the floor there would be a pitched and time-consuming battle. Others say the timing was poor, too close to the presidential election, when Republicans wanted to avoid any perception that the act was soft on crime.)

Of the conservatives who have Kushner’s ear, Whitehouse says, “To be blunt, I am skeptical of their motives.”

But having participated in two meetings with Kushner on the subject, Whitehouse said he believes the president’s son-in-law is serious about improving the criminal justice system. “I’ve seen the way he talks about it,” Whitehouse said. “I haven’t the faintest idea of how he polls in the White House,” but “I know he’s sincere about this.”