Sentencing Reform

Passing Criminal Justice Reform Will Congress Finally Pass Criminal Justice Reform?

Sentencing Reform

Throughout his campaign, President Trump branded himself as the tough on crime candidate and he has held these views for some time. In Trump’s 2000 book, The America We Deserve, he wrote, “Tough crime policies are the most important form of national defense.” He also disagreed with the notion that the US has too many people in prison and thinks everyone who is locked up deserves to be. “I could understand the argument that we have too many people in prison if the police were rounding up innocent people and locking them away. But that’s not the case. For the most part, you have to be a longstanding criminal to qualify for jail.” Needless to say, these viewpoints did not bode well for criminal justice reform, a hot topic for Congress.

What is criminal justice reform?

According to the ACLU, our prison population has soared 700 percent since 1970. Now one in 31 adults is under some kind of correctional control including prison, jail, parole, and probation. Almost half of the inmates in state prisons are there because of non-violent offenses.

The basic premise behind criminal justice reform is that our current system isn’t working. It unfairly punishes communities of color, often imposes sentences perceived to be too harsh and too long, and burdens taxpayers with the cost of mass incarceration. Groups in support of criminal justice reform generally aim to create a more equitable and effective criminal justice system, reduce the prison population without compromising public safety, and ensure a successful transition of individuals from prison to home.

Two supporting but distinct pieces of criminal justice reform are sentencing reform and prison reform.

Sentencing reform

Sentencing reform refers to fixing the “front end.” It targets reducing the amount of people sent to prison and the amount of time people spend in prison by changing what happens before they are locked up, meaning when offenders are arrested, prosecuted, and sentenced. Sentencing reform aims to ensure the punishment fits the crime by reducing mandatory minimum sentences and giving judges more discretion to give a sentence considering the offender’s history and circumstances surrounding the case instead of handing out terms based on the charges.

Prison reform

Prison reform is improving the “back end,” which means possibly reducing prison time once people are already incarcerated, by for example, offering credits for good behavior that may let someone get out earlier than they were sentenced for. Prison reform also supports policies and programs that will help offenders leaving prison to become productive members of society and reduce the chance they will reoffend.

These two initiatives go hand-in-hand. The thought is that prisons are overcrowded largely due to mass incarcerating low-level, nonviolent offenders because judges often have to hand out punishments based on mandatory minimum laws.

Due to this overcrowding, there is no room or budget for rehabilitating offenders. With the mindset that they are a criminal and without support, including substance abuse and mental health treatment and access to meaningful work and educational opportunities, these nonviolent offenders get released from prison only to return to their bad habits and perpetuate a vicious cycle.

The FIRST STEP Act

Prison reform is being deliberated in Congress through the FIRST STEP Act, which stands for Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act. The bill, which was introduced by Reps. Hakeem Jeffries (D-NY), Doug Collins (R-GA), and Karen Bass (D-CA) and co-sponsored by Reps. Bob Goodlatte (R-VA), Keith Ellison (D-MN-5), Tulsi Gabbard (D-HI), Cathy McMorris Rodgers (R-WA) & Tom Marino (R-PA), would work to reduce the federal prison population in the following ways:

– Vocational and rehabilitative programs have a huge waitlist, so the bill would authorize $50 million a year over five years to support more programs designed to help prepare offenders for a successful reentry back into their communities.

– Creating incentives for participating programs, such as allowing for 10 days in prerelease custody for every 30 days of successful participation, increased phone and visitation periods, and transfer to institutions closer to one’s release residence.

– A federal prisoner who is serving more than one year (other than those serving a life sentence) may be rewarded for good behavior by receiving credit that reduces their actual time in Bureau of Prisons (BOP) custody. Although prisoners are supposed to earn up to 54 days of good time credit, in actuality because of the way the BOP calculates good time, they only earn a maximum of 47 days. The bill would ensure the ability to earn 54 days of good time credit per year and retroactively apply this. It is estimated that fixing this will allow some men and women to leave prison soon after the bill passes, yielding savings of $40 million in the first year.

– The BOP would be required to transfer low and minimum risk prisoners to prerelease custody, either to a half-way house or home confinement.

– Prisoners must be placed within 500 driving miles of their home, so it is easier for loved ones to visit.

– Expand compassionate release by reducing the minimum age of prisoner eligibility for elderly release from 65 years old to 60 years old, and minimum time served of prisoner eligibility for elderly release from 75 percent to two-thirds.

– Ban the shackling of pregnant women and extending that protection until three months after pregnancy. The bill also mandates the BOP to provide sanitary napkins and tampons to incarcerated women at no cost.

– Provide IDs to offenders leaving federal prison to allow for quicker integration back into society.

Who supports it?

The U.S. House passed the FIRST STEP Act in late May by a vote of 360-59, and it still awaits consideration by the Senate. Over 100 former federal prosecutors along with groups including American Conservative Union Foundation, Families Against Mandatory Minimums (FAMM), #Cut50, and Right on Crime are endorsing the bill.

FAMM President Kevin Ring said he understands those holding out for sentencing reform, but he said it’s been years since any meaningful bills have passed to help prisoners.

Who opposes it?

In the Senate, Democrats Cory Booker (NJ), Dick Durbin (IL), and Kamala Harris (CA), who normally support criminal justice reform, are strongly opposed to the FIRST STEP Act and have written a letter urging their colleagues to vote against it. The Leadership Conference on Civil and Human Right, the American Civil Liberties Union, and several other organizations also have qualms about the bill.

On the other hand, Arkansas Sen. Tom Cotton, who is famous for saying that America had an “under-incarceration problem,” opposes the FIRST STEP Act because it goes too far. Although he hasn’t taken a public stance, there is evidence of his office reaching out to law enforcement agencies to get them to oppose the bill.

Issues with the FIRST STEP Act

While it sounds great at face value, opponents of the bill say that this limited piece of legislation does not address the core causes of mass incarceration and is actually a step backwards. Any criminal justice reform bill should also include sentencing reform in order to reduce the amount of offenders entering the prison system in the first place. A bipartisan Senate bill called the Sentencing Reform and Corrections Act, is also making its way through Congress, and its supporters believe that the FIRST STEP Act would steal momentum away from the more comprehensive bill.

Not every inmate would benefit from the changes. The system would rely on an algorithm to determine who can cash in earned time credits. However, algorithms have been shown to perpetuate racial and class discrimination by relying on data such as “zip code” and “age at first arrest” rather than analyzing actual behavior.

The promise of releasing prisoners through good credit is deceptive. These offenders will be released from their cell but still be in the federal prison system via electronic monitoring and expanded home confinement. The electronic monitoring will be something that offenders will have to pay for themselves, and the monitoring will be conducted by outside companies. Since these companies are for-profit, a certain profit margin and number of individuals on electronic monitoring will be guaranteed to them as part of their agreement. Many believe that further privatizing the prison system is the opposite direction we should take.

While it would be nice to have prisoners at a facility within 500 miles of their home, this mandate may not be feasible. Facilities are coded based on level of risk. If an offender scores a level 1 and the closest facility is a level 2, they cannot be housed there because it would put them in danger and set the BOP up for lawsuits.

Furthermore, the bill is accused of being unrealistic because the $250 million over five years is not enough to cause any real change, especially in the face of dire staffing shortages.

Coming to a Compromise

Jared Kushner, a senior White House adviser and Trump’s son-in-law, has made the prison reform bill a top legislative priority of his. Kushner has been working with Senate Judiciary Committee chairman Chuck Grassley (R-Iowa) and Senate Democrats to include sentencing reform provisions from the Senate’s Sentencing Reform and Corrections Act in the bill as a compromise.

“The question is how little sentencing reform we can put in there without losing the Democrats and how much we can put in there without losing more than a handful of Republicans, and we think we’ve about cracked that formula,” said a source familiar with the internal talks.

The sentencing reform provisions in the new compromise include:

– Lower mandatory minimum sentences for offenders with prior nonviolent drug felony convictions to 25 years and reduce 20-year mandatory minimum sentences for similar offenders to down 15 years. This would only apply to new sentences, not to those already in prison.

– Apply the Fair Sentencing Act, which Congress passed in 2010, retroactively in order to reduce the disparity between cocaine- and crack-related offense.

– Expand exceptions to mandatory minimum sentences to include more people with criminal histories.

What about President Trump?

President Trump has signaled support for the bill in the past. Speaking at a White House prison reform summit, Trump said, “As we speak, legislation is working through Congress to reform out federal prisons. My administration strongly supports these efforts and I urge the House and Senate to get together … work out their differences, get a bill to my desk. I will sign it.”

For now, it has been made clear that the push for prison and sentencing reform will have to wait until after November’s midterm elections.