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Commentary: Progress on justice reform closer

December 19, 2018
The First Step Act is an important milestone in the long road to ending mass incarceration and curbing the excesses and harm in the federal justice system.

This commentary was originally published for Inside Sources.

Senate Majority Leader Mitch McConnell’s recent announcement to bring federal criminal justice reform legislation for a vote surprised many proponents accustomed to disappointment.

McConnell had teased supporters of the First Step Act with promises of action on the bill after last November’s elections if a Senate vote count found 60 supporters, but he quickly backtracked when supporters of the legislation, including President Trump, wished to call in his pledge.

For months the White House and senators Chuck Grassley of Iowa and Dick Durbin of Illinois negotiated a bill that incorporated curbs to certain drug mandatory minimum sentences, increased good-time credits and expanded rehabilitative programming for people in federal prisons.

The intense objections of Senate hardliners like Tom Cotton of Arkansas and John Kennedy of Louisiana — who made false claims that the bill would lead to early releases of people convicted of violent offenses — helped deprioritize the bill by Senate leadership. But changes designed to weaken the bill’s impact, and strong support from the White House, Republican colleagues and conservative advocacy groups persuaded McConnell to move ahead.

Outdated thinking about crime and punishment, and political fear mongering are typically to blame for legislative inaction and the incremental nature of reforms when they do happen.

President Trump’s work on criminal justice is a case in point. Last week as he urged McConnell to “Go for it Mitch” regarding a vote on the First Step Act, he also applauded China’s use of the death penalty in cases involving drug distribution and announced an attorney general nominee, William Barr, well known for his promotion of prison expansion. This inconsistency is troubling and dims the prospects of more ambitious justice reform in Congress under Trump.

That is a shame because the federal justice system is facing a crisis and, while significant, the First Step Act is true to its name. People who live and work in federal prisons, which increased its population from 24,000 in 1980 to 181,000 today, find them too often overcrowded and unsafe. Waiting lists for basic rehabilitative programming for literacy and high school equivalency degrees stretch into the thousands. Correctional officer shortages have regularly forced programming and medical staff — like teachers and nurses — to guard prison units despite limited experience in those security positions and the desperate need for their skills elsewhere in a facility.

Moreover, federal mandatory minimum sentences for drug offenses are among the harshest in the country. Fifty-four percent of individuals subject to a federal drug mandatory minimum in 2016 were at or below the level of “street-level dealers,” which is defined as selling less than one ounce of drugs. Among people serving life without parole sentences in federal prisons, half are there because of drugs.

The First Step Act is a result of many years of negotiation and advocacy for criminal justice reform. It incorporates critical sentencing reforms that return more discretion to federal judges allowing them to sentence below a harsh mandatory minimum in the lowest level cases. Moreover, it adds proportionality by reducing some of the most extreme penalties, including life without parole for multiple drug offenses.

Previous bipartisan proposals also accounted for people in prison already serving these draconian penalties by providing an opportunity to petition a judge for early release consistent with the bill’s reforms. In the First Step Act life sentences for people with a third drug felony are shortened but only prospectively, and the nearly 2,000 people currently serving those same sentences will die in federal prison unless they receive presidential clemency.

In 2010, Congress reduced the severity of penalties for crack cocaine offenses, overwhelmingly affecting African-Americans. A study by the U.S. Sentencing Commission on the effect five years later found the law, known as the Fair Sentencing Act, reduced the prison population and prosecutions for crack offenses all while consumption of crack cocaine continued to decline.

These reforms worked, and the First Step Act will build upon the progress. Congress should support it, and McConnell should be applauded for finally allowing a vote on these long-awaited adjustments.

The bill, however, does not go far enough and waiting an additional eight years to address some of the most extreme sentencing policies, including for people currently in prison, would be cruel. Prisons must be transformed, racial disparity in the system must be eradicated and people who present little threat to public safety deserve to be home. We all need to act with urgency to dismantle these persistent injustices.

Kara Gotsch is director of strategic initiatives for The Sentencing Project, where she leads federal advocacy efforts to reduce mandatory minimum sentences, end collateral consequences of a criminal conviction and expand reentry opportunities.

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