The Effort to Reform the Federal Criminal Justice System
abstract. The federal criminal justice reform community scored an important victory with the passage of the First Step Act, a federal sentencing and prison reform bill that President Trump signed into law in late 2018. First Step’s passage broke many years of congressional gridlock around criminal justice reform bills, marking Congress’s departure from forty years of policies advancing the carceral state. First Step’s passage didn’t happen by accident. The federal reform community is now better funded, more prolific, and more politically diverse than ever before, and it successfully provided the political cover necessary for congressional members to vote for reform. This Essay describes the difficult movement for federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future federal reforms, while providing a normative analysis of the criteria the federal justice reform community should use in deciding whether to support particular reforms.
Introduction
The federal criminal justice system is unique in both its punitiveness and its resistance to political reform. Since the 1980s, Congress has consistently made federal criminal justice significantly more punitive.1 With a Republican majority in the Senate and a Democratic majority in the House, the 98th Congress enacted the Sentencing Reform Act of 1984. The Act comprehensively changed federal sentencing practices by abolishing federal parole and creating the United States Sentencing Commission,2 ultimately leading to the widely criticized federal sentencing guidelines.3 Two years later, after the death of professional basketball star Len Bias from a cocaine overdose,4 a Democrat-led House and a Republican-led Senate passed a slew of mandatory minimum sentences for drug crimes.5 A Democrat-led Congress passed the infamous 1994 Crime Bill, creating new crimes, increasing mandatory minimum penalties, and ending Pell grants for those in federal prison.6 Towards the end of the 1990s, a Republican-majority Congress passed two more criminal justice bills, one curtailing federal habeas corpus remedies and the other limiting prisoners’ ability to bring civil rights lawsuits in federal court.7 And in the twenty-first century, Congress limited the discretion of federal judges to impose less onerous sentences.8
As a result of these policy changes, federal sentences are now remarkably harsh by international standards, and even compared to most state systems in the United States9—no small feat in the most incarceration-heavy country in the world.10 The federal prison population increased from 24,640 in 1980 to 185,617 in 2017.11 Those in prison are serving even longer sentences than before the abolition of federal parole. While the budget of the Federal Bureau of Prisons (BOP) has grown, “crowding out” other Department of Justice (DOJ) priorities,12 the federal prison system has still largely failed to implement evidence-based rehabilitation programs.13
Despite the recent bipartisan agreement that this system desperately needs reform,14 Congress has been slow to act. Eight years ago, Congress passed incredibly modest sentencing reform with the Fair Sentencing Reform Act of 2010 and applied those changes prospectively only.15 Between 2015 and 2018, Congress could not pass the Sentencing Reform and Corrections Act, which stalled in the Senate.16 And many other reforms died on the vine after being introduced in Senate and House committees.17
But then, almost miraculously, Congress passed a federal prison and sentencing reform bill called the First Step Act in December 2018.18 The First Step Act requires the BOP to provide meaningful rehabilitation programs for federal prisoners and ties those programs to earned credit time that federal prisoners can use to serve out some of their prison sentence in a halfway house or in home confinement.19 The Act also includes a number of provisions aimed at reforming the BOP: placing prisoners within 500 driving miles of their families;20 increasing federal good-time21by seven days, and thereby reducing every sentence for those persons with a release date; allocating $50 million dollars each year for five years to create rehabilitative programming;22 improving accountability in the BOP’s use of compassionate release;23 and prohibiting the shackling of pregnant women,24 among several other reforms. While the bill was pending in the Senate, sentencing reform was also added,25 including retroactive application of the Fair Sentencing Act, thereby reducing the statutory punishments for those convicted of crack cocaine offenses,26 reducing the statutory maximums for certain drug offenses committed by those with prior drug convictions,27 fixing the onerous stacking of 18 U.S.C. § 924(c) charges on those who carry a firearm during a drug or violent offense,28 and expanding on the safety valve provision, which allows federal judges to sentence below the statutory mandatory minimum punishment for certain eligible offenders.29 Yet as this Essay will show, First Step Act was an unanticipated breakthrough in federal criminal justice reform.
In this Essay, I explain how the First Step Act came about, and consider what this breakthrough could mean for the future of federal reform—as well as what risks could stall additional reforms.30 Because federal legislation is complicated and often includes uneasy compromises, I also sketch criteria that the criminal justice reform community should use in deciding whether to support a particular reform bill going forward.
Overall, I am optimistic that Congress will continue to pass meaningful but incremental federal criminal justice reform. Criminal justice reform organizations are better funded, more prolific, and more politically diverse than ever before. Because this community has kept criminal justice reform in the public eye, Congress has more political cover to pass reforms. More Americans are becoming aware that the U.S. criminal justice system currently incarcerates more than two million people, that it’s fundamentally unfair and ineffective, and that its social costs are unsustainable.31 There is every reason to think that more bipartisan incremental reform can be accomplished while the reform community builds national consensus for more structural and equitable reform.
I. congressional gridlock on criminal justice reform and the passage of the first step act
After the 2016 election and the appointment of Senator Jeff Sessions as Attorney General, most in the federal reform community believed we would spend the next four years playing defense against the DOJ’s bad policy preferences and a Congress that frequently treats criminal law and punishment as the only way to fix national social problems. And the reform community had legitimate reason to hold this belief. For the past three decades, federal criminal justice legislation has mostly been a one-way ratchet towards overcriminalization, longer sentences, and mostly expanding federal prison populations.32 Although the stances of political parties can be overgeneralized when it comes to criminal justice issues,33 Republicans controlled all levels of federal policy making in 2016, and reformers generally view Republicans as worse on these issues than Democrats.34 Given that Attorney General Sessions had been a vocal opponent of criminal justice reform35 and in light of some of President Trump’s campaign statements,36 it would have been hard to convince anyone in late 2016 or early 2017 that any federal criminal justice reform was possible.
But then in May 2018, the White House began ramping up its surprising efforts to move forward with criminal justice reform generally and the First Step Act specifically.37 The Republican-led House overwhelmingly passed federal prison reform,38 while Republican Senator Chuck Grassley and Democrat Senator Dick Durbin championed the addition of several federal sentencing reform provisions to the First Step Act.39 Sentencing reform was ultimately included in the First Step Act, which passed with eighty-seven votes in the U.S. Senate, before moving through the House and to the President’s desk in December 2018, where it was signed into law.40
That Congress passed this meaningful reform can be traced to several factors. Recent political developments made space for reform, the necessity of which became apparent due to decades of consistent and powerful advocacy. Rarely has the reform community had someone in the White House who works so closely with the President and is dedicated to justice reform like Jared Kushner, whose father was incarcerated in federal prison in 2002 and who has thus been directly affected by the system.41 Kushner and Brooke Rollins from the Office of American Innovation pushed within the White House for meaningful federal criminal justice reform even with DOJ fighting against it.42 Conservative members of Congress were also vocal about supporting criminal justice reform,43 while Democrats continued to vote in lockstep on the need for federal justice reform.44 The movement for reform within this Administration and Congress, however, was and is bigger than just one person, one office, or a few congressional members.
The progress towards meaningful federal reform is the result of several decades of advocacy by those in the federal criminal justice reform community. Legal scholarship focused on mass incarceration and criminal justice reform exploded after Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness,45 was published in 2012.46 The term “mass incarceration” is now ubiquitous. Popular presses routinely publish books on criminal justice reform,47 and there are now entire media organizations dedicated to covering the criminal justice system.48
For years, national organizations such as the American Civil Liberties Union, the Brennan Center for Justice, and National Association for the Advancement of Colored People have used the political left to fight for reform. Upstart criminal justice reform groups like FAMM and the Sentencing Project led the opposition to more punitive federal sentencing measures through grassroots organizing, local lobbying, and the publishing of policy proposals.49 Practitioners have also played a role; the National Association of Criminal Defense Lawyers and the Federal Public and Community Defenders have advocated for federal reform.50
There are now more national reform organizations,51 more justice reform campaigns,52 and more donor money53 to spread around to both new and established reform organizations. Consequently, more Americans are aware that the United States incarcerates its citizens at a higher rate than any other country on the planet,54 and that criminal justice reform has already been successful in several states.55 Any federal criminal justice reform that takes place in the current moment—the First Step Act included—owes its existence to the organizations and people who have been fighting for reform for decades.
More recently, federal criminal justice reform is no longer just a left-of-center or centrist movement. Conservative groups such as Right on Crime, the American Conservative Union Foundation’s Center for Criminal Justice Reform, the Texas Public Policy Foundation, and the Charles Koch Foundation have increased their presence in the federal reform arena.56 In the last two years, many of these organizations have pushed back against DOJ, its practices, and its false claims,57 whereas in the past, only left-of-center groups would have done so. And in the past year, right-of-center groups have pressed the White House and Members of Congress to pass meaningful federal prison, sentencing, and executive clemency reform.58
The advocacy for the First Step Act differed from the past in another important respect. Many of the advocates who fought for the bill on Capitol Hill, in the White House, on panel discussions, at rallies, and in op-eds were formerly incarcerated. Those advocates brought their stories to bear before policymakers about the unique challenges faced by those entering and leaving the federal prison system. #cut50’s Topeka Sam’s explained from her personal experience, during a prison reform summit at the White House, how providing feminine hygiene products for free would provide some dignity for women in prison59—a provision that made it into the First Step Act.60 FAMM President Kevin Ring engaged lawmakers on the difficulties with maintaining family ties for those in federal prison, as he explained his own struggle with being separated from his children during his incarceration.61 Pat Nolan of the American Conservative Union Foundation often remarked in White House meetings about the morality of providing people with a second chance.62 This was the first time that formerly incarcerated advocates had a seat at the reform table, and one could make the case that including those closest to the problem of the federal prison system moved the needle in passing a bill designed to end those problems.63
It takes a mountain of energy from all sides of the political spectrum to push a piece of legislation through a gridlocked and divided Congress. Yet, overall, there are many reasons to believe that the fight for federal criminal justice reform will be better organized and sustainable than ever before. And public opinion is also moving towards reform,64 even among conservatives.65 All of this has led to a momentous first step in the form of modest but meaningful federal prison and sentencing reform.
II. potential risks to further federal criminal justice reform
Although there now seems to be some forward momentum on federal criminal justice reform for the first time in decades, there are two issues that could derail this progress. One concern is that the groups within the federal criminal justice reform community will make decisions based more on party politics than on good policy. On balance, I think this is unlikely to occur.66 Many of the reform groups desire the same changes, even as they disagree on what is politically feasible at a given moment. From my experience, most of the people in these organizations genuinely believe in the morality of criminal justice reform and would be content with passing meaningful legislation no matter which party or president received the credit. Many groups, in fact, started supporting the First Step Act once sentencing reform was added, even though it was a bill hailed by President Trump and led by Senate Republicans.67 And there are several bipartisan players—groups like FAMM and #cut5068—that will work with whichever party controls the White House.
There are, however, reasons to be concerned. One way that hyperpoliticization can create discord is when reform groups, because of party politics, start revering individuals who do not deserve their reverence. To take one example, there has recently been a national movement among criminal justice reformers to target prosecutors.69 Reformers are currently studying the ways to hold punitive prosecutors accountable for our country’s mass incarceration of its citizens.70 But unlike many state and local prosecutors, federal prosecutors cannot be voted out of office. Thus, the only real check on bad DOJ policymaking officials comes from the career consequences that person experiences after leaving the DOJ. Holding these officials accountable through such consequences is appropriate. If a reform organization disagrees with former Attorney General Jeff Sessions’s policy decisions, then those reform groups should naturally not provide him with awards once he is out of office.
Despite the movement to hold prosecutors accountable, a top DOJ prosecutor who used her power to deny meaningful criminal justice reform has been celebrated merely because she opposed the Trump Administration on an issue separate from criminal justice reform. Sally Yates spent most of her career as a federal prosecutor in Georgia until she was promoted to Deputy Attorney General by President Obama. While in that position, Yates’s record on criminal justice reform was appalling. As Deputy Attorney General, she was responsible for making final recommendations on clemency petitions during President Obama’s clemency initiative.71 Pardon Attorney Deborah Leff resigned in protest, in part because Yates had specifically overridden many of her clemency recommendations.72 Not only had Yates changed positive clemency recommendations to negative, her office at DOJ also denied Leff access to the White House.73 As a result, President Obama was unaware of the differing opinions regarding the merits of clemency petitions.74 In her resignation letter, Leff said, “I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views.”75 It seems that Yates was more concerned with protecting DOJ’s policy prerogatives then advancing favorable recommendations for clemency petitions.
Yates choose to prioritize DOJ prerogatives over reform again when she testified against broad retroactive application of the U.S. Sentencing Commission’s Amendment 728 “drugs minus two” provision76 because of “public safety concerns that arise from the release of dangerous drug offenders, and from the diversion of resources necessary to process over 50,000 inmates”—even though retroactive application would simply have brought these prisoners’ sentences in line with current law.77 She further testified that the amendment should “be limited to lower-level non-violent drug offenders without significant criminal histories” because otherwise DOJ would have to use too many resources to release people from federal prison.78 Fortunately, the U.S. Sentencing Commission made Amendment 728 broadly applicable,79 and Yates’s fears about releasing, in her words, “dangerous drug offenders,” proved to be wrong. The U.S. Sentencing Commission recently issued a report stating that those released under Amendment 728 recidivated at the same rate as those who had served their full sentences before Amendment 728 was made retroactively applicable.80
Despite this clear history of opposing criminal justice reform, Sally Yates was recently honored with a Champion of Justice Award by the National Association of Criminal Defense Lawyers.81 But her actual record raises the question why. If Yates is given awards by the reform community, they should be based on her criminal justice reform record and not simply her party affiliation; otherwise, accountability for former federal prosecutors and DOJ policy officials becomes impossible.82 Even beyond accountability, when directly impacted prisoners and their families see criminal defense lawyers honor the same prosecutors who opposed reform, they think the criminal justice system is a rigged game by elites, thereby undermining their faith in the criminal justice system and ultimately their lawyers.83
The second way federal reform progress could be stymied is by criminal justice reform organizations holding out for comprehensive reform, or the perfect bill, when the politics of the moment will only allow for incremental reform.84 While there have been many reforms at the state and local level in the past few years,85 people incarcerated in the federal prison system have not experienced the same relief. As noted above, the very modest Sentencing Reform and Corrections Act was stalled in Congress for years,86 and until the First Step Act, the last time Congress passed a federal prison-reform bill was in 2007—with the even more modest Second Chance Act.87 In my lifetime, federal criminal justice reform has moved only incrementally, because it is exceedingly difficult to obtain broad consensus on criminal justice issues in Congress.88 When Congress has actually tackled comprehensive reform, the results have been mixed, no matter which party was in the majority.89 If this Congress tried tackling bold and comprehensive reform, I would have grave concerns. Imagine the tradeoffs that would have to be attached to any bill for it to successfully clear the Senate.90
While public opinion is rapidly moving towards reform, Congress has not moved at the same pace. Even when it does move on reform, the inevitable political compromises often produce bad policy. Many in the federal reform community, for example, advocated against the list of exclusions from the First Step Act’s earned-time credit.91 These exclusions prevent those who have committed certain crimes—such as violent, sexual, and certain white-collar crimes—from obtaining the earned-time credit and serving part of their sentence in home confinement rather than a federal prison.92 The First Step Act’s exclusions will negatively affect public safety because those who have committed violent crimes will not be incentivized to successfully complete meaningful rehabilitation programming. But that does not mean they will never be released; it just means that fewer of those convicted of violent crimes will come out of federal prison rehabilitated as a result.93 The exclusions were a compromise to which many in the House quickly acceded—some Democrats included—even as the reform community pressed for reducing the exclusion list, and even though many other parts of the bill changed substantially. In the current political climate, the best evidence-based practices are often excluded from legislation; in this, the First Step Act was no different.
After spending a year speaking with lawmakers on Capitol Hill, I did not see significant consensus—particularly from members elected from states in the Midwest and South—to pass comprehensive reform. And holding out for comprehensive reform will only prevent those currently in the federal system from receiving any relief while serving long sentences in deplorable conditions with little hope of accessing meaningful rehabilitative programs. Those in federal prison and their families should not have to wait for the perfect administration, the perfect Congress, and the perfect bill. The way forward is through incremental and bipartisan reform.94
III. what criteria should the reform community use in deciding whether a reform bill is meaningful and worthy of support?
Deciding which tradeoffs, compromises, and bills to support is no easy task. When many of the federal reform groups convened for a meeting about First Step in fall 2018, we were told by congressional staffers that most of the sentencing reform would be applied prospectively only. That was hard to hear. Many of those in federal prison (including some friends of mine) would benefit from retroactive application of these sentencing provisions, which is why I argued for retroactivity at every meeting I attended. Yet at a certain point, when the votes for retroactive application just weren’t there, the question remained: support the First Step Act without retroactive application, or don’t support it at all? In the end, I supported the bill because, even while it was chock full of compromises, the Act met my criteria for “meaningful” reform.
In considering whether a federal criminal justice reform bill represents meaningful reform worth supporting, the following factors guide my decision-making: 1) whether the bill supports the goals of increasing fairness and public safety while also reducing reliance on prison as a sanction; 2) whether it reduces racial disparities in the criminal justice system; 3) whether those directly affected by the legislation support it; 4) whether there is a realistic probability of passing a better alternative in the near future; and 5) whether passage will lead to further reform. The First Step Act satisfied every one of those criteria.
The First Step Act reduces the imprint of the federal prison system, because it will reduce the time served by those who will be sentenced in federal court and those currently in the system. The First Step Act only contains sentencing provisions that reduce sentences. This is not a bill like the Sentencing Reform and Corrections Act, which, if it had passed, would have removed mandatory minimum punishments for some crimes while creating new mandatory minimums for other crimes.95 On the prison reform side, the Act increases public safety by forcing the BOP to provide evidence-based rehabilitation programs that will reduce recidivism rates while at the same time moving people out of federal prison and into home confinement to serve part of their sentence.96
I support legislation that reduces the worst forms of custody—such as incarceration in prison, which often fails to rehabilitate people and is criminogenic in and of itself97—even if the legislation simply moves people to reduced forms of custody, such as parole or home confinement. Oftentimes legislators are not comfortable with passing legislation leading to outright release, so moving people to home confinement is often the second-best option in our current political climate. To use a concrete example, I supported the Act’s earned-time provisions, which lead to release on monitored home confinement, even as I advocated for expanded good time that would result in outright release. One criminal justice reform organization, JustLeadershipUSA, opposed the First Step Act in part because it does not provide prisoners with outright release and instead expands home monitoring, thereby opening “the door wide open for the federal government to use these tools to expand mass supervision into communities across the country.”98 Michelle Alexander, while not taking a public stance on the First Step Act, also argued that expansion of “e-incarceration” is difficult to call “progress.”99 But the Act does not introduce these measures. The federal criminal justice system already employs halfway houses and home confinement while someone is serving their sentence, and most judges impose a period of supervised release to be served after a prison sentence.100 So the First Step Act doesn’t expand “e-incarceration,” except to the extent that those currently incarcerated can serve more of their sentence in a halfway house or home confinement.
Certainly, we don’t want to replace a system of mass incarceration with a system of mass supervision. But the more immediate goal is not to remove supervision; it’s to move over 180,000 people out of the worst form of custody—prison. When people go to prison, they are exposed to a much greater risk of serious bodily injury, death, and suicide, and they are often delayed or even denied medical care.101 Their children are at greater risk of developing health and psychological issues, and they often slip into lower socioeconomic statuses while achieving lower levels of educational attainment. One study estimated that children of incarcerated parents are six times more likely to become incarcerated themselves.102 By moving some people out of federal prison and into home confinement, the First Step Act significantly reduces these harms. Home confinement—where at least families can be reunited, and people can sleep in their own bed without fear of assault—simply does not rise to the same level of harm as a prison sentence. If outright release is not politically feasible in this moment, the reform community should support bills that remove or reduce some of the greatest harms of the criminal justice system even as we move for more reform.
The Act will also reduce some, though not all, racial disparities in incarceration. The sentencing provisions of the First Step Act, both the retroactive and prospective provisions, will largely benefit African Americans.103 At the same time, the earned-time provision will likely lead to more racial disparities because non-citizens who have been ordered deported, most of whom are Hispanic,104 were excluded from the ability to earn credits towards early release.105 In addition, the First Step Act excludes certain categories of offenses, which will have further racial consequences. For example, white defendants make up a large percentage of those charged and sentenced to federal sex offenses.106 Because those who have committed sex offenses are precluded categorically from receiving earned time, that largely white group of prisoners will be excluded from early release.107 With the different exclusions, from non-citizens to certain categories of offenders, predicting the racial aftermath is not currently possible. As to the earned-time provision, the Act includes a requirement that DOJ create a risk-assessment tool that is given independent review. This review will hopefully help to prevent future racial disparities for those released through the earned-time provision, and also track those that do occur, leading to refining of the risk-assessment tool until no unwarranted disparities remain.108
When evaluating the First Step Act’s earned-time provision, I give ample deference to the views of those who are currently in prison. I’m in email contact with hundreds of people in federal prison and with their families through Facebook, in addition to serving on the board of FAMM, which remains in email contact with 35,000 of those incarcerated in federal prison. To my knowledge, an overwhelming majority of those in federal prison and their families support the Act, including a system of earned time that moves them from federal prison to home confinement.109 The few in prison against the First Step Act were opposed not because it could lead to home confinement, but because most of the sentencing reform provisions will not be applied retroactively, meaning they will continue serving needlessly long sentences.110 An evaluation of what represents best policy—especially when the policy choice consists of moving those in prison to lesser forms of custody—must consider and give great deference to the views of those currently and directly impacted.111
Any evaluation of the First Step Act should be also mindful of the political climate in Congress. As noted above, that climate does not currently lead to policies providing outright release of those in federal prison.112 Several reform groups pushed for Congress to create a system of expanded good-time credits that cut sentences short, rather than a system of earned-time credits that allow people to serve part of their sentence in home confinement. There was little appetite for more good time in Congress, especially from many conservatives. As noted above, federal reform opportunities rarely occur because of the enormous compromises that a majority of lawmakers must agree upon before a bill even comes to the floor for a vote. Reformers shouldn’t risk holding up a bill that moves people out of prison, without any provisions creating longer sentences, on the off chance that a preferred reform can pass several years from now. And, in fact, reform groups that publicly opposed the Act could not point to a potentially better alternative that is politically feasible in the near future.
There is also reason to believe that if the First Step Act’s passage will lead to further reform. If the earned-time provisions lead to lower recidivism rates, states will take notice and pass similar reforms. For better or worse, state governments look to the federal system as a model of best practices. Several states, including Florida, Tennessee, Kentucky, Alabama, and Illinois, have reached out to the reform community in the wake of the First Step Act passing, asking about using the bill as a model for their respective state prison systems.113 That is no coincidence. When Congress passed and President Trump signed the First Step Act into law, it gave sufficient political cover for conservative state legislatures and governors to create their own reforms. The Act thus could ultimately bring about even more meaningful reforms in the state criminal justice systems, which hold the majority of the 2.2 million people held in U.S. jails and prisons.
The First Step Act will ultimately affect every person confined in federal prison and their families, even if the sentencing and earned-time provisions do not provide particular prisoners with earlier release. The Act will force changes in rehabilitative programming, and it provides other incentives that will be available to many in federal prison. For those who do obtain earlier release—whether by way of the earned-time, sentencing, or compassionate-release provisions—their release should alleviate some of the overcrowding and staffing issues currently in the federal prison system, creating improvements affecting everyone. Put differently, the Act might be modest, but it is also meaningful reform—undoubtedly the best reform bill to be passed by the Congress in the past forty years.114
Conclusion
Three years ago, those of us in the criminal justice reform community would have been shocked to hear about a bill like the First Step Act passing. Congress had an almost a forty-year track record of either making criminal justice more punitive or stalling on any potential reform. But with the efforts of the criminal justice reform community pushing from all sides of the political aisle, Congress finally broke the logjam and passed meaningful reform. That incremental and modest reform will provide meaningful relief to those in federal prison and their families, while leading to a decrease in recidivism, making all our communities safer. And with a reinvigorated, newly powerful, and better-funded federal criminal justice reform community, hopefully the bipartisan and incremental second step won’t take so long.
Associate Professor of Law, Georgetown University Law Center. I’d like to thank the editors of the Yale Law Journal for inviting me to participate in this unique Collection of Essays highlighting the voices of the formerly incarcerated and for providing wonderful editorial advice. I’d also like to thank my research assistant, Margaret Rusconi, for her tireless research and wise comments on this Essay.