Now that the deeply fraught midterm elections are over (sort of), negotiations on a long-stalled prison and sentencing reform package have reportedly begun in earnest.
While leaders from both parties and the White House have debated how to breathe new life into a months-long cause, progress has come in fits and starts. The merry-go-round churned again this week, when a bipartisan group of senators reportedly reached an agreement that would, among other things, shorten mandatory minimum sentences for drug offenses, according to The New York Times.
Back in May, the House passed a Trump-supported prison reform bill called The First Step Act, which would increase the number of credits certain inmates could earn, theoretically accelerate their release, and provide millions of dollars in reentry funding. As well-intentioned as the bill’s supporters made it sound, it met swift resistance in the Senate for failing to address underlying problems that have fueled a ballooning prison system.
Sens. Cory Booker (D-NJ), Kamala Harris (D-CA), and Dick Durbin (D-IL), all members of the Senate Judiciary Committee, echoed complaints from civil rights groups critical of the House measure for failing to address sentencing laws. Their complaints were in stark contrast to the celebratory tone set by Rep. Hakeem Jeffries (D-NY), who co-sponsored the bill in the House and said it would “transform lives” and mark the beginning of a more ambitious effort to “eradicate” mass incarceration.
House Judiciary Committee overwhelming passed FIRST STEP Act. It’s the beginning of the end of mass incarceration era #CriminalJusticeReform https://t.co/rk7LqiPG7Y
— Hakeem Jeffries (@RepJeffries) May 10, 2018
The Leadership Conference on Civil and Human Rights had urged lawmakers to oppose the legislation, as it takes a “misguided approach” to reform the system. The correspondence had more than 100 signatures from a variety of civil rights organizations, including the American Civil Liberties Union, Human Rights Watch, and the NAACP.
“This bill falls short on its promise to ‘meaningfully’ tackle the problems in the federal justice system—racial disparities, draconian mandatory minimum sentences, persistent overcrowding, lack of rehabilitation, and the exorbitant costs of incarceration,” the group said.
Of the 2.2 million people incarcerated within the United States, more than 181,000 are in federal prisons. Since 1980, the U.S. prison population has grown exponentially, especially in state facilities. The rise in incarcerated Americans is partly blamed on the racist War on Drugs and the increase in time served, according to The Sentencing Project.
“If we're going to reduce the prison population, if we're going to tackle this issue of mass incarceration, you can't really have one without the other."
– Michael Collins, Drug Policy Alliance
The push for longer sentences meant that by 2016, the number of people serving life sentences (159,520) quadrupled since 1984, when it was below 40,000.
A federal bill may not address all the ills of a criminal justice system, especially the racial disparities in policing. But those lobbying for eliminating draconian sentencing laws, such as mandatory minimums, argue that meaningful reform is long overdue.
In the fiscal year 2017, the United States Sentencing Commission reported that 21 percent of defendants were convicted of an offense carrying a mandatory minimum penalty. The overwhelming majority faced drug trafficking charges.
Prison reform is one of the few issues in Washington that has united people of various political persuasions, from progressives to libertarians and even mega-GOP donors, such as the Koch brothers. Previous attempts at addressing the ever-expanding prison population were unsuccessful. This time could be different.
Republicans appeared hesitant to promote a prison reform compromise ahead of the recent historic midterm elections. With it now in the rear-view, the only impediment could be the Congressional calendar, which is quickly winding down.
“There's a huge federal prison population, and it's driven by drug offenses, and it’s driven by excessive sentencing,” Michael Collins, interim director of national affairs at nonprofit Drug Policy Alliance, said in a phone interview. “It's driven by people who maybe had made a mistake or people who have gotten into some trouble and are then given mandatory sentences.”
The goal, Collins said, is to reduce the amount of time someone spends in prison, while also retroactively cutting sentences for people already incarcerated. Eventually, he’d like to see “thousands” released.
“It would be one step towards ending this, you know, injustice. And that's really the objective here,” Collins added.
The state of play looks like this: During an August White House meeting with Trump’s son-in-law and senior adviser Jared Kushner and Chief of Staff John Kelly, senior Republican leaders, including Senate Judiciary Committee Chairman Chuck Grassley (R-IA), reportedly showcased a compromise bill that would merge The First Step Act with sentencing measures adopted by the Senate. Afterward, Trump appeared to be express support for the compromise deal, according to The Hill, which reported on the meeting.
Following a conversation he had with Trump, Grassley said the president “is very satisfied to have this thing come up after the election,” according to The New York Times. (Grassley’s office did not respond to a request for comment from News Beat.)
“We know that the majority of the people who are in federal prison do not need to be there for as long as they are there with respect to the sentences that they serve, and many individuals could be released today without incident."
– Sakira Cook, The Leadership Council on Civil and Human Rights
Sen. Majority Leader Mitch McConnell (R-KY) opened the door even further in October, when he specifically mentioned prison reform as a problem both parties are eager to solve.
On Tuesday, Sen. Amy Klobuchar (D-MN), who reportedly has presidential aspirations, appeared to endorse the Times-reported deal on Twitter, calling the moment an "important opportunity that shouldn't be lost."
An important opportunity that shouldn’t be lost...federal sentencing reform has broad support: Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump https://t.co/IJy4WOgMlj
— Amy Klobuchar (@amyklobuchar) November 13, 2018
“If we're going to reduce the prison population, if we're going to tackle this issue of mass incarceration, you can't really have one without the other,” Collins, a critic of The First Step Act, said by phone.
Speaking prior to the midterms, Collins predicted that Republicans retaining control of the Senate would improve the chances of a legislation eventually passing, because the GOP wouldn't be forced to push their agenda during the lame duck session. He also noted that a potential ouster of Attorney General Jeff Sessions, a critic of prison reform, could also play to their advantage. Both occurred.
“It’s definitely not dead; it’s actually moving,” added Collins. “I’ve been around the block a lot on this issue, and I have to admit, it’s a complicated path forward for this bill. But we’re sitting here two years into the Trump administration, where Trump has seemingly, by all accounts, endorsed sentencing reform, and his son-in-law has pushed them in that direction. And you know, who would have thought we would be where we are right now?”
Other barriers still exist, however. Some hard-line senators, such as Tom Cotton (R-AK), may not be persuaded to supporting a bill that would end mandatory minimum sentences. Cotton famously said the United States has an “under-incarceration problem” and wrote an op-ed in The Wall Street Journal this past spring in which he called rehabilitation efforts commendable, while comparing early release to a “jailbreak.”
“[U]nder no circumstances should Congress cut mandatory minimum sentences for serious crimes or give judges more discretion to reduce those sentences,” Cotton wrote. “That foolish approach is not criminal-justice reform—it’s a jailbreak that would endanger communities and undercut President Trump’s campaign promise to restore law and order.”
Sakira Cook, director of the Justice Reform Program at The Leadership Conference on Civil and Human Rights, agrees that The First Step Act is not the answer—but for very different reasons.
At the outset, the Leadership Conference was “concerned that there will be efforts to move prison reform without actually addressing the underlying problems with the federal justice system, which is the front-end drivers of mass incarceration,” she said, referring to mandatory minimum sentences.
“We know that the majority of the people who are in federal prison do not need to be there for as long as they are there with respect to the sentences that they serve, and many individuals could be released today without incident,” she added. “We've seen that happen when the Sentencing Commission has reduced sentences. We've seen it happen through President Obama's clemency initiative, where people who have very lengthy sentences have gotten some computations or have gotten their sentences reduced, and it hasn't impacted recidivism in a negative way.”
In urging lawmakers to vote ‘No’ on The First Step Act, Cook’s Leadership Conference outlined a host of concerns, including the use of a controversial algorithmic risk assessment system to determine which inmates would be rewarded credits toward release. Only those deemed “low” or “medium” risk would be allowed to both earn and use the credits for early release—either at a halfway house or home imprisonment. An estimated 4,000 inmates would be released from a federal penitentiary as a result of the so-called “Good Time Credit Fix” provision, according to supporters of the bill, which The Leadership Conference criticized as “misleading.”
At the heart of it, the bill would incentivize participation in rehabilitation programs by using a credit system, which would likely result in the release of many prisoners, if not the 4,000 supporters estimate.
While some lawmakers may be persuaded to overhaul the federal prison system because of monetary concerns, Cook prefers to view it as a moral imperative. There’s been a 500-percent increase in the number of people incarcerated since the 1980s, with African Americans more likely than their white counterparts to be incarcerated, at a rate of six to one.
“I think that over the last several years a light has been shown on...the injustices that take place within our criminal justice system, from a global perspective, and the negative impact that it has on certain communities and not others,” said Cook. “Polls have shown that everyday Americans don't think that we're using our precious resources correctly with respect to the justice system. They don't think we should be spending the $80 billion a year that we spend on incarceration. And it's just the way that we operate today is inhumane. And it doesn't respect the human dignity of all people, regardless of what decisions they might've made, bad decisions they might've made, and mistakes that people might have made. I think at the core of it, we have to remember that these are people, right? And people make bad choices.”
[UPDATE: President Trump on Nov. 14 endorsed a bipartisan prison reform bill and urged lawmakers to send it to his desk.]