by Ed Chung, Center for American Progress
The Trump administration kicked off 2018 by expressing a surprising, newfound interest in reforming the country’s prisons and strengthening opportunities for those incarcerated to successfully re-enter their communities upon completion of their sentences. In mid-January, the White House convened a group of conservative governors and advocates for a roundtable discussion on prison reform, organized by President Donald Trump’s senior adviser and son-in-law, Jared Kushner. The president also mentioned prison reform in his 2018 State of the Union speech, stating that “this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance.” Most recently, the White House relaunched a task force initially established by former President Barack Obama—now rebranded as the Federal Interagency Council on Crime Prevention and Improving Reentry—which comprises federal agencies to coordinate the federal government’s policies to reduce recidivism.
It is tempting to interpret these public statements as a commitment to criminal justice reform. In reality, however, they highlight how much the federal government’s leadership on this issue has diminished. Two years ago, the federal government was driving the national discussion not only on prison reform and re-entry but also around sentencing reform and reducing mandatory minimum sentences; promoting accountability in policing; providing access to legal assistance; and eliminating the criminalization of poverty. Congress was coalescing behind the Sentencing Reform and Corrections Act of 2017 (SRCA), a bipartisan bill sponsored by U.S. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Sen. Dick Durbin (D-IL). This bill would address both prison and sentencing reform: Not only would it help people in prison prepare for life in their communities after serving their sentences, but it also would make sentencing laws more just and proportional to the offense committed.
The SRCA was the product of a carefully negotiated compromise that, while not perfect, would produce substantive change. The legislation’s mandatory minimum sentence reductions—combined with the implementation of prison reforms already underway at the U.S. Department of Justice (DOJ)—provided enough reason in 2015 for five Republicans to join the Senate Judiciary Committee’s 10 Democrats in a committee vote in favor of the bill before it stalled on the Senate floor. In February, the committee again approved the SRCA by a similar vote—16 yeas, five nays—demonstrating that its comprehensive approach continues to garner support across the ideological spectrum.
Nevertheless, the current White House has limited its focus to legislation that examines only the federal corrections system, while the DOJ unnecessarily drives up the federal prison population by advocating for increased arrests and lengthier sentences. Leaders in Congress who previously supported sentencing reform, such as Sen. John Cornyn (R-TX), also are pushing a narrow stand-alone prison reform bill because it is “something that can get the president’s signature.” Certainly, prison reform is crucial, and the possibility of passing legislation that has a chance of producing positive change may be appealing to legislators. But Congress should avoid the urge to get something done quickly and instead craft policy solutions that make long-term sense—tackling problems with sentencing laws and within the broader U.S. prison system.
Prison reform legislation amid changing political times
These bills were drafted and first introduced during the Obama administration, when the DOJ demonstrated a deep-seated commitment to criminal justice reform, including providing opportunities for the formerly incarcerated. Then-U.S. Attorney General Eric Holder rolled out a federal “Smart on Crime” policy that directed federal prosecutors to make an individualized assessment of the circumstances of each case in determining the types of offenses they should charge, especially in cases where pushing for mandatory minimum sentences would not be in the interest of justice. Under this “Smart on Crime” policy, federal resources were directed toward prosecuting more serious offenses rather than minor ones. As a result of these and other policies, including a DOJ clemency initiative that commuted the sentences of hundreds convicted of low-level, nonviolent drug offenses, the federal prison population declined from approximately 220,000 people to 190,000 people in four years.
Paired with this prosecutorial approach, the sentencing and corrections provisions of the SRCA would not only reduce sentences for those eligible for prison programming but would also allow them to spend a longer period of time near the end of their sentence in a transitional setting to acclimate to their communities. The current leader of the DOJ, however, has taken the opposite approach. Attorney General Jeff Sessions instructed DOJ prosecutors to charge the offenses that yield the highest possible sentences in every situation. And the Trump administration is renewing the war on drugs, even calling for the death penalty for a larger number of drug-related offenses.
Without sentencing reform, the lengths of sentences for those eligible for prison programming would increase due to Sessions’ prosecutorial policies. Further, the relief provided under the current prison reform proposal in the form of earned time credits seems too inconsequential when examined in that context.
Sessions has a record of blocking prison reform
The current versions of the prison reform bills in Congress provide the attorney general with a significant amount of discretion in establishing a permanent system that classifies an incarcerated person’s risks and needs, as well as the programming and education they are provided. Crucially, the legislation requires the DOJ to develop and implement the system within 30 months and does not require the participation in this process of any entity other than the DOJ or federal courts. Thus, the attorney general who is in office when prison reform is enacted will have an outsized influence on not only the character and quality of recidivism reduction programming in the Federal Bureau of Prisons (BOP) but also on who benefits from these reforms.
Attorney General Sessions is uniquely unqualified for this task. Far from supporting prison reform and re-entry efforts, Sessions has moved to shut down several residential re-entry centers, which are instrumental in acclimating formerly incarcerated people to life outside prison. In fact, the centers that Sessions is shuttering are the very facilities where time credits earned for completing programming can be applied. He fired the superintendent of the BOP school system, a position created in 2016 to establish a means of providing education opportunities to people while incarcerated. And the budget that Sessions proposed for the DOJ called for a 12 percent to 14 percent reduction in prison staffing—more than 1,800 correctional officers—at a time when more corrections staff is needed. Facing critical staffing shortages, many federal prisons have resorted to assigning the prison’s administrative staff and medical professionals to fill in as correctional guards, without the proper training or equipment to ensure inmate and staff safety.
Sessions also perpetuates the false narrative that all drug and immigration offenses are connected to violence. If this type of faulty analysis is incorporated into the methodology for matching individuals with programming and for determining the amount of time credits they can earn, anyone convicted of a drug or immigration crime would not be able to benefit from the well-intentioned portions of the prison reform bills.
Attorney General Sessions has the opportunity to gain the trust of Congress and those who advocate for criminal justice reform by beginning a transparent process to improve job training and education for people incarcerated. He also could convene a nonpartisan group of experts to develop an assessment that helps identify opportunities to support incarcerated individuals without producing racial disparities. And the DOJ can request funding from Congress for prison reform instead of proposing to cut the BOP budget. None of these activities require legislation to commence, and Sessions has refused to use his authority as attorney general to initiate any policies resembling these reforms. Thus, his track record calls into question how robustly he would implement prison reform legislation.
The efforts and motivations of many congressional leaders to pass legislation that at least addresses part of the criminal justice system should be applauded. The way the BOP prepares those incarcerated for life outside prison is in need of an overhaul, as evidenced by a recent DOJ Inspector General’s report that cited a lack of adequate and effective release preparation programming. Congress should craft prison reform legislation that is appropriate for these national circumstances but that also goes beyond job training and education. Such a bill would mandate reductions in prison overcrowding by lowering the inmate-to-officer ratio; investments in corrections officer training; limits to the use of private prisons and increases in the federal government’s oversight of these prisons’ operations; and restrictions on the use of solitary confinement. And significant improvements can be made to the current stand-alone prison reform bills by providing more direction to the DOJ on creating the risk and needs assessment and prison programming.
But without drastic changes to federal sentencing laws, even these more expansive reforms to the BOP would not address the fundamental injustices: The U.S. federal criminal justice system incarcerates too many people for too long. Congress should consider carefully the consequences of obtaining a legislative victory in passing prison reform and of trusting an attorney general who has not demonstrated enough commitment to any criminal justice reform to implement it.
Ed Chung is the vice president for Criminal Justice Reform at the Center for American Progress.
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