Let me start with some prefaces. This post is mostly in response to a recent op-ed from Just Leadership USA. I have long admired JLUSA, the work it does, and the many criminal justice reform advocates it has created. Nothing I say here changes the important and necessary work it does to end mass incarceration. Glenn Martin created, and JLUSA carried out, something unique in the reform world, whereby JLUSA trains fellows who are then spread throughout the country. I wish more criminal justice reform organizations had that model because we need advocates in places other than New York, Washington DC, and San Francisco.
I write this knowing full well that people will interpret this post a million different ways, but very few will understand my intent unless it is explicit. I have two intentions. I write because several criminal justice advocates who support the First Step Act were ridiculed, attacked, and told they were sellouts by other advocates when they went to the White House to support First Step back in the spring. A fair number of these advocates who support First Step are, themselves, formerly incarcerated and JLUSA alumni. They support the bill because they think it is the best opportunity to provide relief to current federal prisoners and their families. Several of those advocates signed a letter that was sent to the Senate in support of First Step. And my fear is that people will read JLUSA’s new op-ed and again attack those advocates, claiming they are perpetuating injustice by supporting First Step. That fear is especially great given the hyperbole contained in the op-ed and from what I’ve seen from reactions of advocates on social media. This work is hard enough without infighting.
But I also write because some policy positions are just wrong on the merits if the goal of federal prison reform is to help those currently in prison and their families, which it must be.
Where to start. The op-ed makes exaggerated claims, underestimates the current political climate, and takes policy positions that are anathema to anyone serving time in federal prison and their families. As to the hyperbole, the op-ed starts by explaining the famed 1994 Crime Bill and comparing it to First Step Act. But there is one problem with this comparison. The bills are nothing alike. The 1994 Crime Bill greatly expanded the crimes eligible for the federal death penalty and created a number of new firearms, hate, sex, and gang-related crimes. Unsurprisingly for pro-law enforcement legislation, the 1994 Crime Bill led to large increases in the number of people in federal prison.
First Step, however, doesn’t greatly expand the number of federal crimes or its punishment. It is instead a reform bill aimed at fixing a number of issues with the Federal Bureau of Prisons. And while we all wished it went further, First Step will reduce, not expand, the federal prison population. Let me say that again: First Step only reduces the number of people in federal prison. So claiming First Step will have “similarly disastrous consequences” to the 1994 Crime Bill—the worst piece of federal criminal justice legislation in the past 30 years—is simply not credible.
Throughout the op-ed, the language employed is one of alarm. First Step will lead to a “devastating” and “scary future.” That language was used even as several JLUSA fellows support the First Step Act. JLUSA’s “disturbing hyperbole” is bound to sow discord amongst the reform community when used to describe a bill that largely makes the federal prison system better, not worse.
The op-ed chides First Step advocates for supporting a bill that “could hit the brakes on a nationwide movement to reform and redefine the justice system.” The op-ed notes that there exists “the very real possibility of overhauling and wholly transforming our criminal justice system,” and that federal reform should “be pursued with unmitigated and tireless vigor of the movements we are seeing in cities, counties and states across the country.”
It is true that there are a great many reforms happening at the state and local level. But that has not been the same experience for people in the federal prison system. The very modest Sentencing Reform and Corrections Act has been stalled in Congress for years. The last time a federal prison reform bill passed was thirteen years ago with the even more modest Second Chance Act. The entire history of federal criminal justice reform has been pragmatic and incremental reform; it is exceedingly difficult to maintain broad consensus on criminal justice issues in the best of times in the U.S. Congress. And when Congress has actually tackled comprehensive reform, it has usually been disastrous, no matter what party was in the majority.
While public opinion is rapidly moving towards reform, Congress moves laboriously. Many of us dislike the list of exclusions from First Step’s earned-time credit (as opposed to good-time credit that, under First Step, is guaranteed to every person in federal prison). The exclusions prevent those who have committed certain crimes from obtaining the earned-time credit. The list of exclusions includes those who have committed violent crimes, certain white-collar crimes, and any sexual crimes. Those exclusions were part of the price of admission to which many in the House quickly acceded. There was little movement on that part of the bill even from Democrats in the House, even as most criminal justice organizations pressed for reducing the exclusion list, and even though many other parts of the bill changed substantially. No one would move on the exclusions. This is the current political climate. Honestly, I’m surprised with what advocates from all political sides were able to negotiate into First Step.
Some view First Step’s benefits as meager, either because they don’t understand the problems unique to the federal prison system or because they are politically naïve about moving a piece of criminal justice reform legislation through the current Congress. First Step is not anywhere close to ideal reform. But First Step does represent the best federal prison reform bill in my lifetime. First Step is the best federal prison reform bill up for realistic consideration by the U.S. Congress in the past forty years. Reform groups had fought in vain for over a decade just to get the seven-day good-time fix, and many other significant reforms were added into First Step for the people serving time today inside federal prisons. Some say it is not enough, but I’ve seen no credible plan, outside of First Step, for actually passing some meaningful federal prison reform through Congress.
There is little support for believing that a movement to wholly transform the federal criminal justice reform actually exists. As Law Professor Doug Berman notes:
“I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have been stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting. And if the politics are really behind “overhauling and wholly transforming our criminal justice system” now or later, passage of the FIRST STEP Act seems very unlikely to change those politics.”
Lastly, the op-ed prescribes policy positions that are baffling. First, the op-ed says that the First Step replaces “one form of incarceration with another” in the form of home confinement. Rather than cutting sentences short and leading to release from custody, First Step will move people from serving time in federal prison to serving time on home confinement (but its good-time provision actually does cut sentences short). And JLUSA thinks a system of home confinement legitimates the expansion of the federal prison system.
But home confinement is not prison. The 180,000 people in federal prison and their families are suffering because the Federal Bureau of Prisons has only gotten worse during the past six Administrations. Arguing against a bill that will move thousands of people from federal prisons to back home with their families because we can’t get Congress to release people outright, is about as shocking a proposition as any I’ve ever heard from a criminal justice reform organization dedicated to ending mass incarceration. JLUSA would have a hard time convincing anyone currently in federal prison of the position that somehow home confinement is worse than people remaining in prison. Nor could anyone convince the families of prisoners, who overwhelming support having their loved one’s home rather than incarcerated several hundreds of miles away from them in the dehumanizing federal prison system. Although we are trying to create a political climate to eventually move to a system of full release good-time credits, that doesn’t mean we should deny current prisoners and their families this relief.
JLUSA also argues that First Step is a “step backward” because it prescribes that the Department of Justice create a risk assessment tool to determine who can obtain the earned-time credits, and JLUSA claims that risk assessment tools have been shown “to perpetuate or exacerbate racial biases.” The op-ed further argues that First Step “cedes responsibility for creating that risk assessment instrument to Attorney General Jeff Sessions.”
As to risk assessment more generally, there is no consensus among legal scholars that all risk assessment inherently exacerbates racial biases. The very article cited by the op-ed recognizes the problem but is agnostic on it. Some risk assessments are bad. But the question whether risk assessment tools should be used is a question that can’t be answered in the abstract; it must be answered in comparison to what is currently used, which is largely discretion from correctional officers who can issue disciplinary reports that result in the denial of good time credits to those in federal prison.
Placing the risk assessment tool in the federal prison context, if put to a choice between giving correctional officials discretion and using an algorithm, I’d choose the latter (there might be different concerns with the use of risk assessments used by judges in bail and sentencing decisions). An algorithm can be programmed to be less racist than human discretion. An algorithm can be studied and changed in ways that discretionary decisions can’t; it’s hard to ferret out discrimination from a well-supported discretionary decision, even if the support turns out to be dubious upon close examination.
First Step does require the Attorney General to create a risk assessment tool, but it also requires the Comptroller General of the United States to conduct an audit of the risk assessment tool to ensure that it is fairly and effectively employed. If the Attorney General creates a risk assessment tool that applies in a racially discriminatory manner, then I’d expect that the Comptroller General and reform advocates to report it to Congress.
And while I share the discomfort about allowing Attorney General Jeff Sessions to create a risk assessment tool, guess what? I’d have similar discomfort with Eric Holder, Loretta Lynch, and Sally Yates creating a risk assessment tool. The Federal Bureau of Prisons was noticeably worse during their run at DOJ. The federal prison system has been impervious to change no matter the President because it is an afterthought to those running DOJ. All the more reason to take a prison reform bill that largely removes discretion from the FBOP on issues like shackling of women during childbirth and moving people in federal prisons closer to their family. First Step also provides judicial oversight over FBOP decisions on compassionate release. If JLUSA wants to remove discretion from the Federal Bureau of Prisons, then it is difficult to understand why it doesn’t support many of the hard-won provisions contained in First Step.
I speak to and receive emails from thousands of families with someone in federal prison. These families almost invariably support First Step. At the Reform Now rally outside Capitol Hill in early July, many of these families explained how First Step will significantly improve their family’s lives—whether by forcing the Federal Bureau of Prisons to provide meaningful rehabilitation programs or housing their loved one closer to home. The reform groups who oppose First Step weren’t present for the rally. I wish they were. They’d have a better understanding of what makes the federal prison system uniquely harmful to those who are inside it, and how First Step will alleviate some of those harms.
The families who aren’t supportive of First Step are mostly those with loved ones serving really long sentences or life in prison, and this won’t help them get out of prison—even as it is likely to improve the federal prison system overall. I empathize with their pain and frustration. But retroactively applicable sentencing provisions has no chance of passing this year. Not even the Fair Sentencing Act of 2010 was made retroactive when Democrats had a supermajority in Congress and the Presidency. It is hard to imagine the current Congress somehow doing better.
First Step along with some sentencing additions is the best bill we can get now in the current political climate. If we don’t take First Step now, we will be waiting at least another two years for any possibility of federal prison reform. If the past thirty years is a guide, we are probably waiting much, much longer. Given the stakes, there should be an urgency on all sides to get this done.
I understand that many people have strong feelings against the current President, and that undoubtedly drives some of the angst against First Step. Yet there can be fights about every other issue without simultaneously rejecting a federal prison reform bill that provides meaningful help to those currently in prison and their families.