Congress Prepares to Deliver (a little) Criminal Justice Reform

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American-Incarceration

This article was originally published by The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.


Speaking on the record, campaigners for criminal justice reform describe the Sentencing Reform and Corrections Act of 2015—the version given the best chance of passing Congress this year—as “historic,” a “major breakthrough,” “a game-changer.” The head of a left-right reform coalition called the measure, introduced by the chairman of the Senate Judiciary Committee, Iowa Republican Chuck Grassley, “monumental.” Monday’s pro forma committee hearing on the bill was, as one observer put it, a love-in.

Speaking on background, many advocates are more likely to use words like “very modest,” “disappointing,” and “pretty weak tea.” One of the most ardent conservative advocates of reform calls the Grassley bill “a joke” and “a sham.”

Below, we break it down so you can be the judge. But the real question is whether this measure represents a beginning of reform, or the end.

 

The politics of this year in criminal justice is a study in expectations.

Those who are now most disenchanted by the likely outcome began the year brimming with hope. Crime (and the fear of it) has been low. Liberals and conservatives have found common ground in a conviction that the current system wastes money and human potential without making us safer. Millennials have begun to take up the cause as part of a social justice agenda. The national press has been more attentive to police excesses, prison brutality, prosecutorial misconduct, and recidivism. President Obama has made criminal justice a priority for the home stretch of his presidency. “Mass incarceration” has become a popular meme. If ever there was an opportunity for sweeping reform, this was it, yes?

The goals of the hopeful were best embodied in a piece of legislation with the unwieldy title, “The Safe, Accountable, Fair and Effective Justice Act”— the SAFE Justice Act for short. Sponsored by Rep. Jim Sensenbrenner, a Wisconsin Republican with spotless law-and-order credentials (he wrote the Patriot Act), and Rep. Bobby Scott, a progressive Virginia Democrat, the SAFE Justice Act touches many aspects of the justice system. By reducing sentences, it would significantly reduce the number of people (now roughly 70,000) who are sent into the federal prison system each year. Sensenbrenner’s bill languished in the House Judiciary Committee without a hearing or a vote. (The chairman of that panel, Bob Goodlatte of Virginia, and John Conyers, a Michigan Democrat, have offered a narrower bill—more in line with Senator Grassley’s offering.)

The fear of many reformers is that Congress will pass the Grassley bill, declare mission accomplished, and move on. “The defenders of the status quo will say, we’ve given you reform, now give it time to work,” said Pat Nolan, of the American Conservative Union. “It will be the end of federal reform, at least for several years.”

Another group of reformers—they would probably call themselves the realists—says the Sensenbrenner bill was never going to go anywhere. “It was the dream list of the defenders,” said one reform advocate, referring to defense lawyers who had a hand in drafting it. “It never really had a chance.”

The realists, apparently including President Obama, are resigned to the Grassley version as a small step in a new direction. “This is the best that’s ever going to come out of a Judiciary Committee chaired by Senator Grassley,” said a lawyer who follows the subject closely. (As a reminder of the political forces protecting the status quo, some organizations of sheriffs and prosecutors oppose the Grassley bill for going “too far,” for sending a permissive signal about drugs and threatening to release dangerous inmates.) The best hope, in the view of the more resigned reformers, is that this modest measure passes, the sky doesn’t fall, and reformers have a better chance next time—even as early as next year.

The disheartened and the optimists share one major consolation. There is now what seems to be a durable, financed, bipartisan movement that can push for reforms not just in the federal system but at the state and county level. That is where most criminal justice is dispensed, where about 90 percent of the country’s prisoners are incarcerated, and where many jurisdictions are already far ahead of Washington in making the justice system less draconian.

“The mood is changing in this country, and the laws have not caught up with that,” said Mary Price of Families Against Mandatory Minimums, which advocates sentencing reform. “But the bipartisanship is a remarkable measure of how far we’ve come. Whatever happens with these bills, I think there is no turning back.”

For now, here is a comparison of this year’s highest aspirations (the Sensenbrenner/Scott bill) and the likely reality (the Grassley bill), provision by provision.

The SAFE Justice Act (Sensenbrenner/Scott) Sentencing Reform and Corrections Act of 2015 (Grassley)
Sentencing. Sentences for most crimes in the U.S. are far more severe than in other developed countries, and policies like “three strikes” (life in prison for a third offense) and mandatory minimums limit judges’ power to consider extenuating circumstances. Reducing harsh minimums and giving judges more discretion is the centerpiece of both bills.

 

• Reduces mandatory minimums for many drug and weapons crimes. (Retroactive)

• Changes federal drug laws to focus not on the amount of drugs but on the role of the offender—lowly couriers get lighter sentences than mid-level pushers and kingpins.

• Ends federal criminal penalties for simple drug possession, leaving it to the states. (Retroactive)

• Gives courts authority to waive mandatory minimums for nonviolent drug traffickers in cases of mental illness, substance abuse or other trauma.

• Encourages greater use of probation for first-time, nonviolent offenders. (There is no official estimate of the impact on federal incarceration.)

 

Reduces the length of mandatory minimums for drug and weapons offenses (retroactive), but enlarges the pool of people subject to such sentences. Creates new mandatory minimums for aiding terrorists and for domestic violence resulting in death. (Awaiting official estimate of the impact on federal incarceration.)

 

Crack Cocaine. The 2010 Fair Sentencing Act reduced the disparity between crack and powder cocaine. The far more severe penalties for crack, the form of cocaine more prevalent in black communities, were rolled back. But it takes an act of Congress to apply the change retroactively, which would make an estimated 6,500 offenders (out of 220,000 in federal custody) eligible for earlier release.

 

Makes the 2010 law retroactive.

 

Makes the law retroactive.

 

Earned Time. Many prisoners now get time off for good behavior. “Earned time” lets them shorten their confinement more by enrolling in job training, anger management, drug counseling, and other programs designed to make them less likely to commit crimes.

 

• Allows nonviolent offenders ten days time off for every 30 days’ participation in programs designed to reduce the risk of reoffending.

• Excludes prisoners convicted of sex crimes, terrorism or homicide.

• Also allows released offenders to earn time off their probation, which would free parole officers to focus on the hardest cases.

 

Allows nonviolent, first-time offenders five to ten days off for every 30 days in programs. Depends on a “risk assessment”—a process that is controversial because some risk-assessment tools are weighted against the poor and minorities. Excludes many categories of offender—sex crimes, child abuse, fraud, identity theft and others.

 

“Overcriminalization.” Reformers, especially but not only conservatives, complain that far too many regulatory violations that should be punished with fines are treated as criminal felonies.

 

Requires executive branch agencies to get approval from the attorney general for each new criminal penalty arising from a regulation. Any such penalties are to expire after five years.

 

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Wrongful Convictions. Prosecutors are required to disclose to the defense any exculpatory evidence they acquire. But as a rule, prosecutors decide what is relevant—and reports of prosecutors withholding evidence that might be useful to defendants are fairly common.

 

Requires the attorney general to promulgate “best practices” to reduce wrongful convictions. One of those practices is “open discovery,” which would entitle defense counsel to examine any evidence in prosecutor’s possession.

 

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Asset Forfeiture. Police and prosecutors have the power to confiscate assets connected to alleged crimes—from the car of an accused drug dealer to the bank account of a misbehaving Wall Street firm—even without a conviction. Often these assets become a windfall for authorities. Neither bill addresses this, but it will almost certainly be introduced separately.

 

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Solitary Confinement. Isolating inmates for weeks, months, or even years as punishment for infractions is widely viewed as a form of mental and emotional torture.

 

× Limits solitary confinement for juveniles in federal facilities. (There are few juveniles in federal prisons; only about one percent of federal inmates are under 20.)

 

Alternative Courts. Some states divert defendants who don’t belong in (and are likely to disrupt) jails and prisons. They go to specialized courts or programs for the mentally ill, drug addicts, and veterans suffering post-traumatic stress.

 

Encourages alternative courts for the mentally ill, addicts, and veterans with PTSD.

 

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Compassionate Release. Elderly and sick inmates are the least likely to pose a danger to society, and they put a strain on prison medical facilities. The Bureau of Prisons has authority to seek compassionate release under “extraordinary and compelling” circumstances, but rarely uses it.

 

Allows prisoners 60 and older and with serious health conditions to petition for early release. Applies to all offenses except murder, terrorism, and sex crimes. (Retroactive)

 

Similar, but only for nonviolent offenses, and petitioners must have served at least two-thirds of their sentence, whichever is greater. (Retroactive)

 

Policing. A series of high-profile deaths of black civilians in police custody has created mistrust between police and the communities they are supposed to protect.

 

Authorizes the Justice Department to expand grants to state and local law enforcement for policing reforms, including use of body cameras, community policing, de-escalation of conflict.

 

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Prison Brutality. News reports have been filled with stories of prison inmates beaten by corrections officers, who are often shielded from accountability.

 

Creates mental health and “de-escalation” training programs for federal prison personnel.

 

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Lowering Barriers to Reentry. Men and women released from incarceration are often denied access to public housing, jobs, and schools, making it more likely they will return to crime.

 

× Requires the attorney general to evaluate “best practices” in reentry and carry out demonstration projects.
Probation Reform. Many former inmates who go back to prison do so for violating relatively minor parole or probation rules, such as missing an appointment or failing a drug test. Reformers advocate a rising scale of swift and certain consequences (more frequent check-ins, loss of privileges, home confinement) to assure compliance before violations add up to another prison term.

 

Mandates swift, graduated sanctions. Sets a 60-day limit on prison time for technical violations.

 

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Paying for It. It costs as much to imprison someone for a year as to send him to a good college. So reducing prison populations is hailed as a way to save money. But reform is not free. Job training and drug counseling for inmates, alternative courts, expanded use of probation, and other measures are all expensive.

 

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Bill Keller is editor-in-chief of The Marshall Project. Keller worked for the New York Times from 1984 to 2014 as a correspondent, editor, and op-ed columnist. As a correspondent, he covered the collapse of the Soviet Union, winning a Pulitzer Prize, and the end of white rule in South Africa. From July 2003 until September 2011, he was the executive editor of the Times.