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April 6, 2018

Making the case for making the best of federal sentencing changes in the form of prison reform

Lars Trautman has this notable new Hill commentary, headlined "Incentivized early release the right path to sentencing reform under Trump-Sessions," making the argument that advocates ought to pursue even limited prison reform if that is the only form of politically viable federal sentencing reform. Here are excerpts:

The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House.  The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms.

So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?

By passing sentencing reform that doesn’t look like sentencing reform.  Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer.  It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.

As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former....  As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.

So, if traditional sentencing reform is dead in the water, what’s left?  Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin.  Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend.  Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise.  Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next.  Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.  Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.

Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society....

With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug Collins' (R-Ga.) Prison Reform and Redemption Act.

While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.

April 6, 2018 at 03:44 PM | Permalink


The problem with this strategy is that it invites goal post moving. Once you take the heat off of front end sentencing reform Sessions won't see that as a sign of being reasonable, he'll see it as a sign of weakness and keep pushing. Bill Otis is not a reasonable man, at least on this topic. The fact they want to put him on the sentencing commission says all one needs to know.

I just really hate this idea something is better than nothing. It is true a half a loaf is better than none but what the OP wants to accept is not half a loaf, he wants us to accept the empty paper bag the bread comes in from the deli as a subsistent for the bread.

"With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely."

What they need to do is go for broke. If there is nothing left to lose, why not shoot for the moon? Trump did and now he's president.

Posted by: Humdee | Apr 6, 2018 3:59:13 PM

There was likely half a loaf available from 2013 to 2016, but many I think believed more could be secured after the election. Now there are less than crumbs. That lesson may not call for accepting crumbs now, but tens of thousands of prisoners are starving.

Posted by: Doug B. | Apr 6, 2018 5:37:23 PM

Too bad that starvation is only figurative.

Posted by: Soronel Haetir | Apr 6, 2018 8:03:28 PM

So you think prisoners ought to be literally starved, Soronel?

Posted by: Doug B. | Apr 7, 2018 11:18:24 AM

As I've said many times I believe the vast majority of felons and a goodly number of misdemeanants should be executed. While I do admit I would choose a quicker and more humane method than starvation it does have the benefit of being inexpensive.

Posted by: Soronel Haetir | Apr 7, 2018 11:32:19 AM

Wow, Soronel !! I am stunned.

Posted by: bruce cunningham | Apr 7, 2018 3:47:01 PM

Soronel you were born too late. If you had been born in 1700 in England you would have had what you want.

Posted by: John Neff | Apr 7, 2018 10:00:04 PM

Prison does a lot of drug offenders good initially, Im all for it. But the Feds want to condemn these people and house them for an eternety.

Prez Obama did a lot with his commutes, especially at term end. He certainly could of done much more along the way, was surprised that he didnt . Willie Horton didnt help matters, Congress doesnt want their voting record stained.

Its going to be tough sleding for another decade, perhaps. Who knows, maybe if Trump gets his wall built, he will change his mind on crime, really?

Sessions will get fired before long, maybe Bill Otis will be the new AG? Scary thought isnt it.

Posted by: MidWestGuy | Apr 8, 2018 10:10:07 AM

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