Prison reform and sentencing reform are divisive issues across party lines, and contention over immigration, gun control and other issues related to security and crime are at an all-time high. As such, bipartisan support for legislation— especially prison reform legislation— feels like a surprising advancement.As Republican lawmakers part with Attorney General Jeff Sessions’ call to enact harsher punishments for those convicted of drug crimes, the likelihood of bipartisan prison reform being signed into law and its’ effectiveness at solving systemic criminal justice issues must be considered.
There are two major types of prison reform: front end reform and back end reform. Front end reform, or sentencing reform, aims to reduce the number of people convicted and the lengths of sentences before individuals are imprisoned. In contrast, back end reform focuses on reducing sentences for those currently in prison through “good behavior” credits or transitioning inmates to serve out the rest of their sentences in home confinement or at halfway houses.
Republican Representative Doug Collins of Georgia is spearheading prison reform legislation with New York Democratic Representative Hakeem Jeffries. The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (or FIRST STEP) is a form of back end reform aiming to decrease the United States’ recidivism rate. The act prohibits shackling pregnant women, allocates a total of $250 million over five years to fund programming development and expansion, and places inmates within 500 driving miles of their families. Prisoners may earn “good behavior” credits by participating in educational programming and vocational training. Undocumented immigrants and those serving time for high-level crimes would be ineligible for earning these credits.
Some reforms introduced by the Sentencing Reform and Corrections Act (SRCA) passed by the Senate Judiciary Committee in the spring and have been incorporated into FIRST STEP. Like FIRST STEP, SRCA, introduced by Chuck Grassley (R-IA) in 2015, received broad bipartisan support.The reforms added to FIRST STEP include reducing life sentences without parole for nonviolent drug offences to 25 years, reducing 20 year sentences for nonviolent drug offenses to 15 years, and retroactively reducing the disparities between crack cocaine and cocaine charges. The proposed sentencing reductions are not applied retroactively, however. In a joint piece for Fox News voicing support for SRCA, Senators Chuck Grassley, Dick Durbin (D-IL), Mike Lee (R-UT) and Sheldon Whitehouse (D-RI) wrote, “It became clear that if we wanted to truly make progress on [prison reform], we would have to come together, check our differences at the door, and focus on areas where we could reach agreement.”
Amongst FIRST STEP’s bipartisan supporters is President Trump. "This year, we will embark on reforming our prisons to help former inmates who have served their time get a second chance,” said President Trump during his 2018 State of the Union address at the beginning of the year. Considering Trump’s hardline campaign promises to “restore law and order” and his nomination of notoriously tough-on-crime Jeff Sessions as Attorney General, his support of prison reform comes as somewhat of a shock. In the past, Trump vocally supported capital punishment. In his book, The America We Deserve, Trump writes:
Soft criminal sentences are based on the proposition that criminals are the victims of society. A lot of people in high places really do believe that criminals are victims. The only victim of a violent crime is the person getting shot, stabbed, or raped. The perpetrator is never a victim. He’s nothing more than a predator (p. 93-4)
At a March rally in Manchester, New Hampshire, Trump seemingly retracted his previous pro-reform comments, saying “If we don’t get tough on drug dealers, we are wasting our time, and that toughness includes the death penalty. We have got to get tough. This isn’t about nice anymore.” Trump’s support for FIRST STEP suggests he is in favor of reducing the sentences of nonviolent drug offenders and reintroducing them into society. Therefore, his call for drug dealers to receive the death penalty opposes his previous support of FIRST STEP. It is, however, in line with his opinion in The America We Deserve. In another surprising move, Trump reaffirmed his support for FIRST STEP a month later at a White House summit stating, “Prison reform is an issue that unites people from across the political spectrum. It’s an amazing thing. Our whole nation benefits if former inmates are able to reenter society as productive, law-abiding citizens,” and that he would sign FIRST STEP if lawmakers were able to come to consensus.
If Trump keeps his promise and signs FIRST STEP into law, one has to wonder how effective it will be with Attorney General Sessions at the helm. In a 2017 opinion piece for The Washington Post, Sessions criticized the Obama Administration for “softening” its approach to drug enforcement and cited it as the reason for the surge in drug abuse and violent crime. As Attorney General, Sessions rolled back many Obama-era attempts at criminal justice reform, ordering prosecutors to “pursue the toughest possible charges and sentences against crime suspects.” Sessions came out against the SRCA in an editorial for CNN, claiming that, “Passing this legislation [SRCA] to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation's history would make it more difficult to achieve our goals and have potentially dire consequences.” Sessions’ opposition may impact the effectiveness of reforms, as the proposed legislation requires Sessions to develop assessment tools to determine offenders’ recidivism likelihoods.
Moreover, FIRST STEP faces criticism from Democratic lawmakers. Critics consider its’ bipartisan support as a sign of potential infectivity. After all, the sentencing reform introduced by the act does not apply retroactively and only introduces reforms to federal prisons. A letter signed by Senators Dick Durbin, Cory Booker of (D-NJ) and Kamala Harris (D-CA), and Representatives John Lewis (D-GA) and Sheila Jackson Lee (D-TX) criticized FIRST STEP for failing to solve the increasing recidivism rate and not allocating enough funds.
Various advocacy groups have also expressed criticism toward FIRST STEP. DeAnna R. Hoskins, president and CEO of JustLeadershipUSA, believes FIRST STEP would “perpetuate structural inequality.” She writes:
By limiting “prison reform” to a combination of half-hearted credit time — which would leave people on home confinement or in halfway houses, rather than shorten sentences — and a reliance on risk assessment instruments that are steeped in racial bias, the FIRST STEP Act could hit the brakes on a nationwide movement to reform and redefine the justice system.
More than 100 civil rights advocacy groups came out in opposition of the act as well. The groups, headed by The Leadership Conference on Civil and Human Rights, fear the risk assessment system is steeped in “racial and class bias.” Their letter to Congress reads:Attorney General Jeff Sessions is a well-known, longtime opponent of sentencing and prison reform. It would be unwise and harmful to vest so much discretion in an Attorney General so hostile to meaningful justice reform.” Additionally, the groups find FIRST STEP’s list of individuals ineligible for early-release credits too broad.
If FIRST STEP makes it to the President’s desk, it is difficult to know if Trump, who has expressed both support and opposition to reform, will sign or veto it. Kara Gotsch of the Sentencing Project believes the likelihood of reform passing is “small” due to changes made in the Department of Justice by Sessions, such as directing federal prosecutors to punish crimes with the maximum sentences. Additionally, Attorney General Sessions’ implementation of the act may impact its’ ability to lower recidivism rates. One of the largest bipartisan pushes for prison and sentencing reform in a long time may be stamped out by a lack of funding, racial and class biases and a lack of front-end reforms targeting mandatory minimum sentencing.