The Conversation: Will Congress' First Step Act Reduce Mass Incarceration?

By Michelle S. Phelps
University of Minnesota

(THE CONVERSATION) — When Donald Trump was elected president, many people feared his “law and order” campaign rhetoric would mean the end of criminal justice reform.

Trump confirmed this impression by appointing Jeff Sessions, an aggressive supporter of the “wars” on crime and drugs, to lead the Justice Department. Sessions quickly reversed a number of the progressive reforms introduced under President Barack Obama, including reducing penalties for drug offenses, ending private prison contracts, and investigating conduct of local police departments.

Yet by December 2018, Jeff Sessions had resigned and the federal government passed a criminal justice reform bill, the “First Step Act.” The law reduces prison sentences, by changing the sentencing guidelines and facilitating early release, and supports education and treatment programs in prison.

The bill was supported by the White House, Republican and Democratic leaders, and an unlikely set of advocates from progressive non-profits like the Brennan Center and American Civil Liberties Union to the conservative Koch Brothers.
The following month, Trump seemingly reversed course again, appointing William Barr – another staunch supporter of the “tough on crime” approach – to replace Sessions.

How do we make sense of these seemingly contradictory developments and alliances?

I have found in my research that criminal justice policies and practices in the United States have often followed complex trajectories. Reforms often receive support from unlikely coalitions. But, by focusing on these strange bedfellows, commentators and advocates sometimes paper over the deeper disagreements in ideas about who, how and how much to punish. Fights over these differences ultimately shape how policies get put into practice – and whether the bill ultimately achieves its intended outcomes.

While the First Step Act’s passage may look like a clear victory for more moderate punishment, its implementation and impact under the Trump administration is likely to be quite limited.

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Bipartisan agreement on “reform”

Criminal justice is often described by academics and journalists as a pendulum that swings wildly between harsh punishment focused on retribution, and more lenient treatment focused on redemption or reformation. In this metaphor, some people saw Trump’s election as a swing of the pendulum away from progressive punishment and back toward punitive policies.

In our book Breaking the Pendulum, my colleagues Joshua Page and Philip Goodman and I argue that a better metaphor is the constant, low-level grinding of tectonic plates that continually produce friction and occasionally erupt in earthquakes. This friction manifests in traditional political combat, mass demonstrations, prison rebellions, and academic and policy work. Periodically, major changes in conditions like crime rates and the economy change to provide support and opportunities to one side or another.

These changes often bring together unlikely allies.

People typically associate the “law and order” approach to criminal justice with Republicans. However, new research shows how liberals laid the ground for these policies. It was the Democratic administration of President Lyndon Johnson during the 1960s that first launched the  “war on crime” by expanding federal funding to build up the capacity of local law enforcement agencies. In the following decades, the crime rate spiked, due in part to better reporting by police departments, and crime became a hot political issue.

By the 1990s, Republicans and Democrats had all but converged on attitudes toward law enforcement. Not wanting to lose to Republicans by being portrayed as “soft on crime,” Democrats took increasingly “tough” criminal justice stances. President Bill Clinton’s wildly popular 1994 Violent Crime Control and Law Enforcement Act was the apex of this bipartisan enthusiasm for aggressive policing, prosecution and punishment. The bill made federal sentencing guidelines more severe, increasing both life sentences and the death penalty, and built up funding streams to increase local police forces and state prison capacity.

Despite the rhetoric of the crime bill, the best evidence suggests that it played little role in the explosion of the national prison population – or what scholars term “mass imprisonment.” This is because policies focused on harsh punishment had already peaked by 1994. In addition, it only applied to the federal system, which represents only 10 percent of all people locked up. Finally, even though there was wide support for the crime bill, activists, politicians, judges and others continued to fight against “tough” punishment, eventually building the momentum for the First Step Act.

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First Step Act

What does this history tell us about the First Step Act?

First, it’s not surprising that Republicans and Democrats, conservatives and liberals came together on the bill. Both camps have moved away from the “tough on crime” mantra. Democrats now talk of “smart on crime” policies while some Republicans support the “right on crime” initiative. Both agree that aggressive policing and heavy criminal penalties for low-level offenses, particularly drug crimes, do more harm than good.

The rise of a new approach to criminal justice can be tied to a number of changes since the 1990s, including historically low crime rates, strained state and federal budgets and a growing awareness of the negative consequences of mass incarceration. Critically, a cadre of conservative leaders spent the past two decades working to change Republican orthodoxy on this issue. They frame mass incarceration as a fiscal and moral failure that wastes tax dollars and violates the Christian principles of “second chances” and redemption.

As a result criminal justice reforms have been spreading to red and blue states alike since the 2000s. After the 2016 election, advocates including Jared Kushner, and a slew of celebrities like Kim Kardashian West, have urged the President to embrace reform. These pressures ultimately succeeded in prompting the White House to support the First Step Act.

However, bipartisan consensus is not as seamless as it is sometimes portrayed. A group of Republican leaders remain aggressively opposed to these criminal justice reforms. And at the last hour, they nearly killed the First Step Act.

That takes us back to Barr – Trump’s recent selection to replace Sessions at the Department of Justice. Barr was President George H.W. Bush’s Attorney General. He is perhaps best known for endorsing a Justice Department memo arguing for “More Incarceration” in 1992. As recently as 2015, he vocally opposed federal sentencing reform.

During his confirmation hearing last week, Barr promised to “diligently implement” the First Step Act, but then backtracked to support Session’s policies at the Justice Department, adding, “we must keep up the pressure on chronic, violent criminals.”

Like the ‘94 bill before it, this indicates that the First Step Act will likely be more bark than bite. The First Step Act might provide relief to several thousand current federal prisoners. But Barr will likely follow Sessions and direct his prosecutors to seek the maximum criminal penalties against current defendants, including for drug offenses, limiting the impact of the First Step Act’s sentencing reform. And the bill will have no practical effect on state prison systems, which in some cases have already embraced much more radical reforms.

While the First Step Act is a move in the direction of more humane and moderate criminal justice practices, I think it will likely be a very small first step indeed.

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