In the increasingly partisan realm of American politics, criminal justice reform stands practically alone as the magical issue on which most of the right and left can still agree. It’s a political movement that’s managed to put the rightwing Koch Brothers in league with the American Civil Liberties Union (ACLU). And where the libertarian senator Rand Paul can find common cause with the California Democrat Kamala Harris.
Even Donald Trump, who ran a campaign soaked in the rhetoric of “tough on crime” and delivered an inaugural address that warned against encroaching waves of “American carnage”, found something to like in the politics of reform. Trump is throwing his support behind a prison reform bill that improves some conditions for inmates and provides incentives to get involved in programs that reduce the risk of recidivism after release. The bill passed easily in the House last month, earning up votes from virtually all Republican members, and more than two-thirds of Democrats. It’s also earned the stamp of approval from conservative groups like the Charles Koch Institute and the Faith and Freedom Coalition.
But this Trump-backed legislation, nicknamed the First Step Act, has also caused a fracture among progressive reformers. Some, like the DNC co-chairman Keith Ellison, have championed the legislation as an imperfect step forward while others, such as former attorney general Eric Holder, see it as a missed opportunity to do more.
‘Say yes where we agree’
The scale of the problem, and the political and legislative challenges involved, is evident from a cursory glance at the numbers. The US incarcerates more citizens per capita than any nation on earth. As of 2015, the US still had an incarceration rate about six times that of China, and 12 times that of Sweden. Numerous studies have shown that incarceration in the US rarely succeeds at rehabilitation, and in many cases destabilizes inmates’ lives by making them less employable, dissolving family bonds, and damaging their mental and emotional health.
These poor human outcomes, and the exorbitant cost – one study by the Prison Policy Institute recent pegged it at $183bn a year – have driven the cross-party push to decarcerate in the US.
It’s also a cause that has caught on in pop culture attracting the attention of entertainers like John Legend and Jay-Z. Last week even saw Kim Kardashian West discussing prison and sentencing reform with the president in the Oval Office.
But none of that has been enough to get any federal reform legislation off the ground, in part because of all the financial interests – which scholars have termed the prison industrial complex – tied up in keeping people behind bars. Companies who provide facilities, food, healthcare, even telephone services – which bring in more than $1bn annually from prisons and jails alone – have all sought to protect those markets with lobbying on Capitol Hill.
So for some advocates, there are plenty of reasons to take a win where they get it. “When we started out we wanted to see one bill that would fix the entire criminal justice system,” said Jessica Jackson-Sloan, the policy director for reform advocacy group Cut50. “After years of fighting over that it’s become clear that that’s not going to happen. We should say yes where we agree – and right now we agree on prison reform.”
Jackson-Sloan says the bill is imperfect, but says it would immediately release 4,000 federal prisoners, expand compassionate release of sick and elderly inmates and invest tens of millions in re-entry programs. Jackson-Sloan, who worked with Jared Kushner on the legislation, said the bill’s detractors were failing to recognize the “new political reality” reformers are facing in a Trump presidency.
“There is a constant tension in legislating, where some people argue that it’s better to take half a loaf and then come back for the rest,” said Michael Steel, a former top aide to the retired House speaker John Boehner. Jackson-Sloan, along with other prominent reform groups like Families Against Mandatory Minimums and the Equal Justice Initiative, have all come out on that side of the coin.
‘Sloppy and dangerous’
Missing from this piece of legislation is the crucial issue of sentencing reform – as distinct from prison reform. While prison reform deals with how people who are already incarcerated are treated and may give them some faster pathways out, sentencing reform is the piece of the puzzle that dictates how many new people are going into prison – and for how long. Most experts say the high US rate of incarceration is a result of the dramatic increases to sentencing length that took place after crime waves in the 1970s and 80s. However, that’s an issue that Republicans, who control both houses of Congress and the White House, are less sold on.
Bipartisan Senate legislation that would have addressed prison and sentencing reform failed in 2016, after Trump’s election put the issue on the back burner. But the logic of doing the easier one first is not as straightforward as it sounds, Steel points out. “We tend to do big pieces of legislation on these big topics very rarely, so if you don’t get as much as you can, or you don’t get what you actually want, you may lose the opportunity to make any further progress for a decade or a generation,” he said.
That was the argument made by Holder in an Washington Post op-ed opposing the legislation. “By choosing a tepid approach, the prison bill abandons years of work and risks making it harder for Congress to advance more serious legislation in the future,” Holder wrote.
Todd Cox, policy director at the NAACP Legal Defense and Educational Fund, called the rapid pace of the law “sloppy and dangerous”, noting that there had been no hearings or floor debate on the bill, nor any budget scoring or analysis of the bill’s social impacts.
Joining Cox and Holder in opposition are the ACLU as well are Democratic senators Cory Booker, Dick Durbin and Harris, who said in a joint statement that the bill would mark “a step backward from our shared goal of ending America’s mass incarceration crisis”.
Some of that may have as much to to with optics or with the upcoming midterm elections as any specific grievance with the bill, Steel said. “I think that there are definitely progressive groups that don’t want to let Trump have a win on anything. There are also probably progressive groups that think that the House is going to flip this year.” If Democrats take control of the House, they could fashion something more robust.
In the end, though, it may be splits among Republicans, rather than Democrats or progressives that hamstring First Step. In the Senate, all roads for the legislation pass through the judiciary chairman, Chuck Grassley. In yet another irony, this senior Republican goes against many in his party by believing firmly that sentencing reform will be a necessary component for any bill to advance past his committee.
“This is necessary for practical as well as political reasons,” Grassley said in a speech last week. “First of all, it’s the right thing to do.”