Trump-endorsed criminal justice reform bill would do a lot more good if it were made retroactive
For those of us in the criminal justice policy world, the lesson of Nov. 6 was, roughly speaking: there is hope for criminal justice reform, at least at the local and state level. Carroll Bogert, president of the Marshall Project, wrote that the “midterms revealed a country as polarized as ever–except on criminal justice reform.” Now, it seems that there might be hope for a federal shift as well. “Lawmakers are expected to make a renewed effort to pass a criminal justice reform bill by the end of the year after punting the issue into the lame-duck session,” writes Jordain Carney for The Hill. “Advocates for the proposal are hoping it has new momentum after McConnell pledged before the midterms that he would measure support for legislation and bring it to the floor if it can get the 60 votes needed to pass.” Bringing the bill to the Senate floor would be a significant victory for a bipartisan group of senators which has tried for years to get a vote but repeatedly run up against opposition from a small but vocal group of Republicans. “Trump adviser and son-in-law Jared Kushner has also prioritized the ongoing negotiations to merge prison reform and sentencing reform, and he’s been at the center of the Senate talks.” [Jordain Carney / The Hill]
As of yesterday afternoon, President Trump was expected to lend his support to what the New York Times called “a substantial rewrite of the nation’s prison and sentencing laws.” (Reason, on the other hand, calls it “fairly modest.”). The legislative compromise, called the First Step Act, would chip away at some of the tough-on-crime federal laws passed during the 1980s and 1990s that contributed to the explosion in incarceration. “Among the long-sought changes incorporated into the legislation is language shortening mandatory minimum sentences for some nonviolent drug offenses, including changing the ‘three strikes’ penalty to 25 years from life in prison,” reports The Times. “They would give judges greater ability to use so-called safety valves to sidestep mandatory minimums” in nonviolent drug cases. The bill would also clarify that the much-maligned stacking mechanism that creates a new crime and adds years to any sentence if a person possessed a firearm while committing another crime––even a drug offense––should apply only to those who were previously convicted. [Nicholas Fandos and Maggie Haberman / New York Times] The stacking provision leads to such unjust outcomes that even the former attorney general Jeff Sessions agreed it should be changed when he served in the Senate. [Jacqueline Alemany / Washington Post] The bill would also scale back some of the harshness of life in prison by mandating that people be held closer to their homes and banning the shackling of pregnant prisoners. [Scott Shackford / Reason]
Unlike an earlier proposal, after a Democratic concession, this bill would not apply the new limits on the “stacking” provision or the reduction of mandatory minimums retroactively. Without retroactivity, its ability to tackle the federal prison population is significantly diminished. One provision would, however, be retroactive: a reduction in the astonishing sentencing disparity between crack and powder cocaine signed into law in 2010, which left Black people in prison for decades for crack-cocaine offenses, while their largely white counterparts charged with powder cocaine offenses did far less time. This retroactivity could affect thousands of people serving draconian sentences. [Nicholas Fandos and Maggie Haberman / New York Times]
The National Fraternal Order of Police (FOP), the nation’s largest police organization, surprised and delighted reform advocates when it announced its support for the First Step Act. But lawmakers got FOP’s support by promising not to make sentencing reforms besides the crack-cocaine reform disparity retroactive. “So those handed mandatory minimum life sentences for a drug offense under federal three-strikes regulations cannot request mercy to get their sentences cut to 25 years,” notes Scott Shackford for Reason. “This seems cruel, but hey, it keeps prison guards on the job.” [Scott Shackford / Reason]
The question of retroactivity might sound technical and wonky, but it is the difference between seriously reducing incarceration levels and tinkering at the margins. Florida’s passing of Amendment 4 this month gained much attention, but equally important was the passage of Amendment 11, which repealed much of the state’s “savings clause,” an 1880s-era section of the state Constitution that prohibited the legislature from changing criminal sentences after someone has been convicted, which criminal justice advocates, including the ACLU, said was a crucial way to reduce incarceration levels. [Andrew Pantazi / Florida Times-Union] The path is now paved for Florida to bring down its prison population through retroactive sentence reductions. But an ambitious ballot initiative that aimed to “deal a blow to the war on drugs and mass incarceration,” Issue 1, failed in Ohio. It was designed to reduce incarceration in part by reclassifying drug possession offenses as misdemeanors and making those new drug statutes retroactive: People currently incarcerated for drug offenses could have petitioned for new sentences. [German Lopez / Vox]
Even if the First Step Act did apply retroactively, the federal prison population is a small percentage of the overall U.S. prison population, so the overall numbers of incarcerated people in the country would not change drastically. But normalizing the idea of retroactive justice reforms would be a worthy goal in itself—it might be the only way we can ever “cut 50,” cut 40, or even get past a trim.