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May 21, 2018

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:

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. 

May 21, 2018 at 05:34 PM | Permalink


Criminality is so rampant, the entire criminal justice system is close to irrelevant. It has a high false positive error rate, railroading thousands of innocents and petty criminals. Its false negative error rate ridiculous. It allows billions of crimes a year, to go unanswered.

People should give up on government, and do their own crime management. Public self help is the sole universal factor that unifies all jurisdictions with low crime rates.

Even public self help will become irrelevant, as 10's of thousands of criminals pass away from opiate overdoses. Crime is now undergoing a mass extinction. The subject of this blog will become as relevant as admiralty law, to the average citizen.

The drama around this law is silly.

Posted by: David Behar | May 21, 2018 7:39:35 PM

"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."

Two percent of prison terms by itself does not make this incorrect especially with the word "could" there.

Posted by: Joe | May 21, 2018 8:11:50 PM

The partisan politics around this bill is unfortunate but to be expected. The climate is so toxic. The first step act will not give one day of relief to any of the nonviolent marijuana offenders who have sentences of life without parole. They were all charged with conspiracy and chose to go to trial. This bill requires assistance.

That said, there are thousands who would have some sentencing relief if it were passed. We haven't had the perfect yet, should we not consider something that is somewhat better?

Eric Holder wrote an opinion for the Washington Post attempting to burnish the criminal justice reform of the previous administration, while criticizing the first step act. It would be acceptable if there had been significant reform.

Unfortunately, there was not significant reform and thousands were left behind. Surprisingly, the population of the federal prison system has declined by about 10,000 since the beginning of the Trump administration.

Posted by: beth | May 21, 2018 8:25:52 PM

Hard to believe that Sessions has the job he does, oh boy.

Mandatories may never get eliminated, reduced or softened, but its sure wirth co tinue effort.

Politics as usual....While tens of thousands sit biggest and best part if their life on sudelines. But to get where they are, they screwed up pretty bad and not just once.

Posted by: MidWestGuy | May 21, 2018 9:06:04 PM

It is not easy to predict the outcome of sentence policy change. In general the outcomes are temporary. OTOH if you are able to keep the admission rate smaller than the release rate the population will decrease.

For state systems about 20% of the admissions are because of probation revocations and another 20% are returns to prison from parole or residential work release. We are spending all of our time talking about federal sentencing policy when we should be asking why are we getting such poor results from community supervision at the county and state levels.

A feature of our system is that the counties do not want to pay to incarcerate felons and the states do not want to pay to incarcerate misdemeanors and neither are willing to pay for pretrial supervision.

If the feds need money for incarceration they borrow it so they don't care what it costs.

Posted by: John Neff | May 21, 2018 10:02:50 PM

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