On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing"

The on-going debate over competing proposals for federal statutory criminal justice reform continues to fascinate me, but I am getting ever more troubled by suggestions from certain folks that the FIRST STEP Act is so bad and that the Sentencing Reform & Corrections Act is a so much better.  This new New York Times editorial, headlined "The Right Way to Fix the Prisons," reflects this thinking, and here are excerpts with passages stressed that particularly concern me:

For more than a decade, states of every political hue — from Texas and Louisiana to Connecticut and California — have been overhauling their criminal justice systems, to reverse the effects of decades of harsh and counterproductive policies.  But Congress has watched this revolution from the sidelines, thanks to reactionary lawmakers, including Mr. Sessions when he was in the Senate.  Comprehensive federal legislation has been foiled again and again, as states forge ahead, reducing both prison populations and crime rates through bipartisan reforms....

One bill backed by the White House, known as the First Step Act, would improve some prison conditions and help smooth the path to re-entry for people behind bars. It would, for example, require that inmates be housed within 500 miles of their families, prohibit the brutal but disturbingly common practice of shackling pregnant women and expand rehabilitative programs in which prisoners can participate to earn good-time credits.  These are all important and long-overdue fixes to existing law.

But the bill would leave it up to individual prison wardens to decide who gets to use their credits and when, which means inmates would be treated differently based on where they’re locked up.  The bill also restricts early release to halfway houses, even though as many as 40 percent of people behind bars pose no risk to public safety, according to a study by the Brennan Center for Justice, and would do fine with less intensive oversight, such as electronic monitoring.  On top of that, federal halfway houses are so underfunded that even inmates who are eligible for immediate release can’t go anywhere, because there aren’t enough beds available.

The biggest problem with the First Step Act, however, isn’t what’s in it; it’s what’s left out.  Specifically, sentencing reform.  Harsh sentencing laws passed in the 1980s and 1990s, like mandatory minimums of 10 or 20 years even for low-level drug crimes, have been among the main drivers of the nation’s exploding prison population....

Mr. Grassley is sponsoring the Sentencing Reform and Corrections Act, which would reduce the harshest sentences for nonviolent drug crimes and give judges more discretion to issue lighter sentences.  The bill nearly passed Congress in 2016, only to be killed by then-Senator Jeff Sessions.... Mr. Grassley’s bill has the support of top senators of both parties, as well as law-enforcement leaders and the Leadership Conference on Civil and Human Rights, a coalition of more than 200 civil-rights organizations.  It’s not perfect, but it’s far preferable to the First Step Act, which could get a vote in the House as soon as this week.

Meanwhile, liberal backers of the First Step Act, like Representative Hakeem Jeffries, the New York Democrat who is sponsoring the bill, argue that it’s better than nothing, especially in the current political environment. “We have a Republican president. Republicans control the House of Representatives and the Senate,” Mr. Jeffries wrote in letter to his colleagues on Friday. “Those are the facts.”

He’s right.  And yet a partial bill could end up being worse than nothing, especially if its benefits don’t live up to expectations, and if Congress, which has many other pressing matters to attend to, decides it’s had enough of the topic.  “Get a bill to my desk,” Mr. Trump said on Friday. “I will sign it.” If he means this, and if he genuinely cares about reforming the federal justice system, he’ll demand a bill that addresses the system’s most pressing problems.

Though this Times editorial references Rep. Hakeem Jeffries' extended letter defending the FIRST STEP Act, I wonder if the details of this important missive was fully understood.  That letter highlights that many of the prison reform provisions are MUCH improved in the FIRST STEP Act as compared to the SRCA.  Of particularly importance, the FIRST STEP Act includes the "Good Time Credit" fix, which serves functionally as a 2% across the board cut to prison terms for all current and all future federal prisoners.  There is no proper way to claim that a permanent and retroactive 2% cut in all federal prison terms "could end up being worse than nothing."  Moreover, it bears noting that the SRCA is anything but major sentencing reform, as it is only forecast to impact less than 5% of all cases annually under the US Sentencing Commission's estimates.  

In other words, the SRCA offers a worse version of prison reform cobbled together with a weak version of sentencing reform.  Even on the substantive merits, I am not sure I would prefer SRCA to the FIRST STEP Act.  (And of course, Congress has been trying to pass variant on the SRCA for now nearly half a decade to no avail.)   Most critically, the passage of the SRCA would be much more likely to bring what the NY Times fears, namely a reform bill that does not live up to expectations and yet allows Congress to feel it can move on after having done something "comprehensive."  In contrast, the FIRST STEP Act, if passed, will be in both name and spirit just what is needed here: a real improvement that is widely understood as only the first of many needed steps toward fixing a deeply flawed federal sentencing and prison system.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• Puzzling through the current politics of pursuing federal statutory criminal justice reforms 
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• More criticism of prison-reform only efforts, while failing to explain a path forward for broader federal sentencing reforms
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 

UPDATE: This Politico article from Monday night, headlined "Trump-backed prisons bill DOA in the Senate," suggests that neither the FIRST STEP Act or the SRCA has much of a chance to make it through the Senate no matter what happens in the House.  Though the headline of this Politico piece is disconcerting, the full article is not quite so pessimistic and reinforces that Judiciary Chair Senator Chuck Grassley and Senate Leader Senator McConnell are the critical players for the future of any federal statutory criminal justice reforms for the foreseeable future.