Criminal Justice Advances
Criminal Justice Advances
Washington has been having a messy and often uninformed debate about whether to reform the criminal justice system in the waning days of the 115th Congress. The good news is that the final product may be better following the kind of compromise that used to be the norm in passing bills.
The Senate this week will take up the First Step Act, a bill with cosponsors from both parties and an endorsement from President Trump. The original version of the bill passed the House with more than 350 votes, and Speaker Paul Ryan was among the backers.
The thrust is that maybe prisoners would be less likely to return to crime if they spend more of their time in prison on education or vocational training. Current federal law allows prisoners who aren’t serving a life sentence to earn early release for good behavior, a low standard that basically means not stabbing anyone. These are called “good time credits.”
The First Step Act would add “earned time credits,” which work as follows: Prisoners undergo a risk assessment, which is used in Texas and Georgia and considers factors like criminal history or behavioral tendencies.
Only those deemed low or minimum risk to society can apply these credits toward spending more of the sentence in home confinement or a halfway house. This doesn’t reduce a sentence, only where it’s served. Some 95% of prisoners aren’t there for life, and the point is to help rehabilitate at least some.
The original Senate bill excluded prisoners convicted of some 50 serious crimes from applying credits toward time in a halfway house, even if prisoners are low risk. This list of crimes was created to assuage skeptics that the many violent and highly dangerous criminals in federal prison won’t benefit from the bill.
Yet the exclusions list turned into a political nightmare, as critics like Tom Cotton of Arkansas focused on dangerous crimes that didn’t make the roster. The reality is that prisoners who aren’t excluded from earning credits aren’t automatically entitled to them. Inmates must first be deemed low risk.
The Senate and White House also added sentencing reforms, most of which aren’t controversial, such as retroactive reductions for those sentenced unfairly for crack cocaine. Yet some on the right didn’t like expanding the legal “safety valve” that allows relief from mandatory minimum sentences if a defendant is cooperating with law enforcement, among other conditions.
Critics then said that convicts will exploit the credits they aren’t entitled to combined with shortened sentences and, voila, offenders would be on the streets in half the time. The drafters have since added more crimes to the exemption list and pared back the provision that allowed for more judicial discretion.
This compromise is expected to clear the Senate with more than 60 votes, though not everyone is happy. Mr. Cotton is offering three amendments, including further expansions of the list that bans certain offenders from earning time on supervised release. His colleagues will be hard-pressed to vote down adding carjacking and assault to the list.
Ditto for amendments that would require victims to be notified if an inmate is moving into a halfway house, which offers victims a chance to tell the warden if, say, the person has contacted or threatened them while in prison. The third amendment would require data on rearrests for those who are part of the program. The public has the right to know how prisoners act once they’re released under this bill.
Then again, Mr. Cotton’s political style has reduced the odds his amendments will pass. He has treated good-faith concessions as proof that he was right about his colleagues wanting to let sex offenders and violent criminals on the street. Democrats feel like they’ve made enough concessions and aren’t likely to go along. The votes of a couple Republicans can defeat the amendments, and Mr. Cotton didn’t earn any goodwill by insulting his colleagues as soft on violent criminals.
The best news for the Senate, and for deliberative government, is that all of this can be debated and voted on the Senate floor. Under both parties, the Senate has become a leadership-driven body with too little opportunity for real debate. GOP Leader Mitch McConnell deserves credit for bringing the bill forward.
Many on the right don’t want to consider any change in criminal laws despite reforms in states that have reduced prison populations without increasing the crime rate. Politically this cedes the issue to the left, which wants far more lenient punishments that would threaten public safety. Republicans have a use-it-or-lose-it moment to show they have better ideas.
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