Two Cheers for Criminal Justice Reform

The Trump Administration has backed the criminal justice reform measures now awaiting final congressional approval. A bill seems likely to pass since congressional Republicans and mainstream Democrats also are behind it. On the right only a few diehards, like Senator Tom Cotton (R-AR), are opposed. Too much “leniency,” he says. Predictably, some extreme anti-prison groups complain that it doesn’t reduce sentences for serious violent criminals. Still, even the progressive wing of the Democratic Party is supportive, albeit as a first step toward a broader cutback of so-called mass incarceration. (The popular name for the House bill, which passed back in May, is the “First Step Act.”)

Absent some last-minute amendments of consequence, however, the final package will provide no sweeping change. Indeed, the first thing to note about both the House and Senate bills is that overwhelmingly they affect only 12 percent of the prison population—inmates convicted of federal crimes. This is a good reminder that criminal justice in America is in the main a state and not a federal activity. The feds are pretty much limited to running the criminal justice system of just one jurisdiction out of 51.

The federal government, of course, can carrot the states into adopting reforms, as it sometimes does with grants for congressionally approved programs. One such feature may be found in the House bill which seeks to encourage more spending on state and local grants for mentally ill offenders.

Not only will the new law have no direct impact at all on 88 percent of U.S. prisoners, it has little to say about federal crimes, which have grown exponentially in recent decades, often without the mens rea element traditionally required for convictions. It is important to note that prosecutors love strict liability (no mens rea) laws because they can get convictions without proving that the accused intended to cause the harm. The Senate measure, however, does require that the Attorney General prepare an inventory of federal crimes, noting those that do or do not require a mens rea.

Nor is there anything in these bills about federal law enforcement despite concerns over the politicization of the FBI during the last presidential election.

So this legislation really should be dubbed the “Federal Prison Reform Act” because inmates in federal prisons are the main event here. Mostly this is about leniency for people who have committed very serious crimes, as that is the population that ends up in federal prison. But that doesn’t by itself make this a law unworthy of approval.

Here are some notable features of the Senate bill, currently lodged in the Judiciary Committee.

It would make retroactive, presumably as a matter of equity, the 2010 law that reduced sentencing disparities between crack and powder cocaine. Inmates sentenced before 2010 for crack possession or sale would be able to apply for resentencing.

It also would reduce mandatory minimum sentences imposed under the federal “three strikes” law. A second serious drug or violent offender would get a 15-year minimum instead of a 20, and a three time offender would have to serve 25 years instead of life. Other 10-year mandatory minimums in drug convictions could be reduced to 5 years at the discretion of the judge where the defendant cooperated with the prosecution.

These are not exactly wrist-slap sentences. Nor are mandatory minimums eliminated altogether; the bill imposes new minimums for certain domestic violence cases and cases of aid to terrorist organizations. And punishments for making or distributing fentanyl—a big part of the opioids scourge—are increased.

One of the most promising features of the Senate bill is the boost it gives to electronic monitoring (EM). Certain low or moderate risk prisoners may be released to home confinement for the last months of their sentences subject to 24-hour EM. Whether it’s called parole or, as here, “pre-release custody,” any use of GPS technology to monitor discharged prisoners is an idea whose time has come. It helps the prisoner by letting him out early and audibly reminding him of his obligations (such as to report to his probation officer), while at the same time providing additional protection for the general public. Used more widely, electronic monitoring can reduce incarceration rates while minimizing the risks to public safety—a win-win proposition.

The House bill doesn’t expressly provide for electronic monitoring, but it certainly lends itself to it. It calls for maximal home confinement in the above-discussed pre-release custody situation. GPS monitors are made-to-order for home confinement as they tell the authorities when the released inmate is leaving the home in violation of the sentencing court’s order. It would be nice to see an explicit EM requirement when the final law is adopted.

Congress abolished federal parole in the Sentencing Reform Act of 1984, but pre-release custody looks like a back-door to its reinstatement. The Senate measure explicitly reestablishes federal parole by name, but offers it only to inmates serving 20 years or more if they were under 18 at the time of the crime. These young men must have committed some very violent crimes to warrant that kind of sentence, so there is a risk in releasing them. On the other hand, 20 years is a very long stretch.

The House bill also provides sentence discounts for participation in what it calls “evidence-based recidivism reduction programs.” Prudently, it makes certain violent or terrorist inmates ineligible for this type of release.

Both House and Senate direct the Justice Department to develop a “recidivism risk assessment system” for federal inmates after reviewing existing state anti-recidivism programs. It makes sense to develop a systematic way to determine the risk of repeat offending before we reduce sentences. I’m not hopeful we know how to do this, however. After decades of high crime and its associated incarceration we haven’t yet figured out who is likely to reoffend and who isn’t. A recent Justice Department study found that an eye-popping 82 percent of prisoners released in 30 states in 2005 were arrested for a new crime within nine years of their release. And this does not include technical parole or probation violations.

Other rehabilitation-oriented features of the House bill include:

• helping released prisoners obtain identification papers, such as social security cards;
• treatment programs for prisoners addicted to heroin or other opioids; and
• pilot programs to provide mentors for youthful inmates.

The bills also have a number of features that will make the lives of inmates less miserable without any risk to the public.

• incarcerate prisoners as close as practicable to their primary residences;
• forbids restraints on pregnant inmates;
• early release of terminally ill and elderly prisoners; (the Senate version defines “elderly” as age 50 or above, but we now know that this age group is much more violent than in the past; 70 or older is a safer bet);
• make healthcare products available to inmates; and
• limits solitary confinement of juvenile inmates and expunges juvenile records.

All told then, this is a worthy reform package. It grants a limited number of federal offenders rational and modest sentence reductions, incentives to rehabilitate, and some humane improvements while they serve their sentences. Yet it contains nothing radical to diminish the criminal justice system or undermine public safety. Progressive fantasies aside, there is no reason to believe that it is a “first step” in that direction.