« Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim | Main | Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review? »

April 19, 2018

Lots of notable reporting and commentary as federal prison reform tries to move forward

As reported here last week, there was talk of a federal prison reform bill moving forward in the House of Representatives this week.  This article from The Hill, headlined "Prison reforms groups battle over strategy," highlights that folks on the left may be gumming up the works:

Progressive groups fighting for criminal justice reform are divided over legislation that would allow prisoners to finish their sentences in a halfway house, home confinement or under community supervision if they complete education, job training, drug treatment and other programs while behind bars.  The Leadership Conference for Civil Rights, American Civil Liberties Union and NAACP are among the groups saying that legislation that fails to reduce mandatory minimum sentences isn’t worth their support....

But #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, sees the bill sponsored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that’s supported by the White House as an opportunity for positive change, even if it’s incremental. “It’s a bill that’s moving that we decided as a group we’ll hop in and try to make stronger because I think this is going to move with or without us,” said Jessica Sloan Jackson, the national director and co-founder of #cut50.

Instead of shooting it down, the group said it’s lobbying to make the Prison Reform and Redemption Act stronger.  Sloan Jackson acknowledged #cut50 would rather have the Collins–Jeffries bill include language that reduces mandatory minimum sentences, but recognized the criminal justice reform movement has shifted under Trump. She said #cut50 would like to at least win some changes to help people in prison.  “At this point in the process, I think it’s stupid not to even engage in conversations with folks on the right and in the White House just because you aren’t getting everything you want,” she said.

To supporters of broader reforms, however, the bill is a significant step down from legislation that nearly won approval in the last Congress.  That bill, sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), has been reintroduced and would eliminate certain mandatory minimum sentences for nonviolent drug offenses. It would also give judges more discretion in sentencing.

The Collins–Jeffries bill authorizes $50 million to be appropriated each year from 2018 to 2022 for the Bureau of Prisons to offer education, work training and other programming, but opponents say that’s not enough.  It also lists 48 different categories of crimes that make prisoners ineligible to earn time in pre-release custody for taking these programs, a provision groups backing broader reforms say excludes too many prisoners who are at a high risk of reoffending and need prison programming the most.  “By cutting out or limiting so many people to get incentives to programming you are missing the point,” said Kevin Ring, the president of Families Against Mandatory Minimums.

In a letter to members of the House Judiciary Committee on Friday, dozens of groups opposed to the bill said it would do little good if it does not reduce mandatory minimum sentences.  “Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense,” the groups wrote.

The Collins–Jeffries bill has won support from groups on the right that have backed minimum sentencing reforms. “We’re big advocates for commonsense sentencing reform as well and we hope that happens, but we want to get the ball rolling and we think prison reform is a great place to start,” said Mark Holden, Koch Industries’s general counsel and senior vice president....

Advocates say Jeffries and Collins have been negotiating possible changes to their bill, and a markup that had been expected this week was pushed back to provide time for their work.  In a joint statement to The Hill, Jeffries and Collins said their bill will reunite families and help thousands of Americans get back on their feet.

Similar report on these debates and developments are in this Politico article, headlined "Kushner’s prison-reform push hits bipartisan resistance: The son-in-law of President Donald Trump is pressing for a criminal justice bill that’s narrower than a bipartisan one that has stalled in Congress."  And Van Jones has this new CNN commentary that highlights his work and his support for a prison-reform-only bill under the headlined "Prison reform is possible even in the Trump era."

As long-time readers likely know, I am a strong believer that the best should not be the enemy of the good.  In this setting, I am especially eager to urge federal criminal justice reform advocates to secure ASAP any and whatever improvements they can.  I still can recall, though it is now nearly five years ago, when commentators were asserting that "momentum for sentencing reform could be unstoppable."  But from 2013 through 2016, despite a President, Attorneys General and many members of both parties advocating all sorts of federal sentencing reforms, not a single statutory change could make it through Congress to the desk of the President.   Meanwhile, hundreds of thousands of defendants have been (often over) sentenced to federal prison since 2013.  And while there, as Craig DeRoche highlights in a letter in the New York Times, these prisoners are stuck within a prison system that "offers drastically less opportunity for prisoners to transition to community corrections before the end of their sentence compared with almost all states."

Advocates are right to complain that a compromise bill with only prison reform is insufficient, but the fact that broader bills have been pushed and stalled for half-a-decade leads me to be more than ready to settle for half a loaf.  I have grow so tired of the reform talk that produces no result, though I am sure I am not as exhausted and frustrated as hundreds of thousands of federal prisoners, defendants and their families who have been clinging on to still empty promises of reform potential for year after year after year after year.  Van Jones has a couple of lines in his commentary that capture well my feelings here, as well as my desire to preserve some hope for this process:

My big heartache -- on this topic and so many others -- is how much common ground there is when you get people talking -- and yet how little we actually do about it.  Taking a small but meaningful step together now could allow us to take more steps together later.

April 19, 2018 at 06:14 PM | Permalink

Comments

"that folks on the left may be gumming up the works"

This is well-worn but inaccurate nonsense. The Republicans are in the White House, Attny General, DOJ, Senate and House. They have run over Democratic opposition on many, many issues because of their majority in both houses. If they can't get anything done, they should take the heat. The Republicans stalled reform under Obama and you blamed him. They stall reform now and you blame the oh so powerful ACLU and NAACP?

BS

The right caused the mass incarceration problem. (Clinton did a lot of damage by pivoting right on crime, yes.) The right talks a good game but has delivered no federal reform.

Posted by: Paul | Apr 20, 2018 8:28:13 AM

When you have a complex adaptive adversarial system it is hard to believe there is much "common ground".
It takes a long time for someone who is qualified to work in the criminal justice system to become an experienced practitioner and they don't agree on many issues. Furthermore, they know from experience that reforms often have serious unintended outcomes. The other criminal justice system insiders and the outside observers also don't agree on many issues.

That leaves the interested and uninterested outsiders and we have no idea what they think other than mixed results from polls. However, they do know that there are many contradictory statements. Common ground and contradictory statements don't go together.

Posted by: John Neff | Apr 20, 2018 10:01:58 AM

I agree 100% Paul that if Republicans really want to get sentencing reform and/or prison reform done, they can do it on their own. (Same was true for Dems in 2009 and 2010, but they only passed (tepid) crack sentencing reform.) And I blame the GOP leadership not only for halting reform, but also for precluding votes --- on bills that likely would pass if floor votes were allowed --- simply because the GOP caucus is divided on this issue.

But, critically, because the GOP caucus is divided on this issue AND because GOP leadership has not allowed floor votes on these matter for 5+ years, it is critical for folks on the left to decide if they want to secure reform ASAP or just blame the right for not getting anything done until 2021 or later. I criticize Prez Obama because he (1) did not prioritize these issues in 2009 and 2010 when Ds had full control of Congress, (2) did not prioritize these issues from 2011 to 2014 when Ds still controlled the Senate and crime was still dropping, and (3) did not seek to cut some kind of reform deal with GOP leaders from 2015 to 2016 that would have included mens rea reform and prison reforms and FSA retroactivity and modest sentencing reform (e.g., expansion of the safety valve). Though it is easy to take pot shots from the ivory tower, it was even easier to see how a failure of Dems to work strategically on these issues has preserved the status legislative quo for now EIGHT YEARS.

You are correct that the right has done more talking than delivering at the federal level. But at the state level the right has delivered a lot, in part because state-level Ds have been working with GOP leadership in the states. If state Ds can help GOP leaders move forward with state level reforms, I continue to hope that federal Ds will help GOP leaders move forward with federal level reforms ASAP.

Posted by: Doug B. | Apr 20, 2018 12:47:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB