Blog No. 198 Criminal Justice Reform and a Remembrance of George H. W. Bush

It is not often that President Trump gets a favorable notice from RINOcracy.com, but when the opportunity arises, it should not be missed. And so the President must be saluted for his strong support for bipartisan legislation presently pending in Congress, which would bring badly needed and long overdue reform to the criminal justice system. At the same time, Senate Majority Leader Mitch McConnell must be sharply chastised for having failed to bring the Senate bill to the floor and for withholding a commitment to do before the end of the current term. A companion bill passed the House by 360-59 in May, but if the Senate fails to act this month, the entire process will have to begin again in the new year. And because the current bills represent a delicate compromise reached after laborious negotiations, prospects for passage in the next Congress would be uncertain.

The pending legislation bears the title First Step Act and, as the name implies, it is seen as a first step to a more comprehensive criminal justice reform. (It originated with the sort of weird acronym that only Congress could dream up and that has mercifully been largely forgotten: “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person.”)

Even as a first step, however, the Act contains several constructive elements deserving of passage. These elements include provisions relating to future sentencing, reducing the time of some prisoners currently incarcerated, and creating programs to reduce recidivism. The Act applies only to federal courts and prisons and, as such, its direct application would be limited: the federal prison system houses just over 180,000 people, which is approximately 12% of the incarcerated population of the United States. It would, however, parallel reform legislation already adopted in several states and provide a stimulus for reform in others.

What the First Step Act Would Do

Future Sentencing

The Act would expand the ability of federal judges to bypass mandatory minimum sentences for non-violent drug offenders. For those who are serious violent crimes or serious drug offenses the mandatory minimum would be reduced to 15 years from 20 years.

The Act would also modify the “three strikes” penalty that calls for offenders to face life in prison after committing a third crime. The existing guidelines can result in an inmate serving a life sentence for three minor, nonviolent crimes. The Act narrows the category of offenses giving rise to three strikes treatment and, for applicable offenses, life sentences would be reduced to 25 years.

Reducing Length of Incarceration for Current Inmates and Addressing Recidivism

A 2010 law reduced the sentencing disparity between crack cocaine offenders and powder cocaine offenders The sentencing disparity disproportionately affected black people, who were sentenced to longer periods of incarceration for crack offenses than white offenders charged with comparable powder cocaine offenses. The 2010 law was not retroactive, but the Act would make it so — covering inmates incarcerated for crack cocaine offenses before Aug. 2, 2010. Although the reductions are not automatic, an estimated 3,000 inmates could be affected by this change.

The time off for consecutive days of good behavior while incarcerated would be clarified and modestly increased from current practice. More importantly, the Act creates a new credit toward transfer from prison to pre-release custody — meaning home confinement, supervised release, or a halfway house. Such credit is earned by participating in recidivism-reduction programs or other productive activities that facilitate reentry into society. Inmates are eligible for release only if they are determined to be a minimum or low recidivism risk by the warden of their facility, based on data-based standards developed by the attorney general and an independent commission.

Prison Conditions

More than 10,000 women are incarcerated in federal prisons. Some of those women are pregnant and the Act would improve conditions for them by prohibiting the shackling of female inmates while pregnant.

The Act would also require the Bureau of Prisons to locate prisoners in facilities close to their homes, if possible.

Politics Surrounding the Act

In the Senate, the First Step Act is sponsored by Senator Chuck Grassley and has 31 co-sponsors evenly divided between Republicans and Democrats with one independent (Angus King of Maine). Beyond Capitol Hill, the Act has the support of a wide variety groups across the ideological spectrum ranging from the Brennan Center for Justice and the ACLU to the Koch Brothers and the Fraternal Order of Police. It has the backing of numerous newspapers including the Washington Post, Christian Science Monitor, Deseret News and the Louisville Courier-Journal which all pushed for the Senate to pass the legislation. In its endorsement, the Christian Science Monitor board noted that the First Step Act would “[take] a little sting out of an era of hyperpartisan politics by proving that working across party lines is still possible.” The bill was also endorsed this week by the United States Conference of Mayors, the National Governors Association and the United States Conference of Catholic Bishops.  

Opposition to the bill in the Senate is led by hard-line conservative Senator Tom Cotton of Arkansas and includes Marco Rubio and Ted Cruz. Cotton has made extravagant and misleading claims that the Act would lead to the release of a flood of violent criminals, drug traffickers and sex offenders. Salvador Rizzo, writing as a Fact Checker in the Washington Post, provided a detailed assessment of Cotton’s claims and awarded him, rather leniently I thought, with Two Pinocchios. Essentially, Cotton overlooks safeguards in the Act and assumes that, if passed, it would will be administered in an incompetent and irresponsible fashion by the Bureau of Prisons. For readers who wish to inquire further, Rizzo’s column also provides useful links to op-ed pieces by Cotton, and to the text of the Act and detailed summaries of its provisions).

There has also been some opposition to the Act from voices on the left who feel that its provisions do not go far enough. But as The Wall Street Journal asked, “why not take some progress when you can? The Journal added:

It would also be instructive to find out how, say, New Jersey Democrat and presidential aspirant Cory Booker would vote. Would he oppose improvements on one of his own ostensible priorities because Mr. Trump might get a scintilla of credit?

Mr. Booker and Senator Kamala Harris of California sent around a letter earlier this year complaining about the bipartisan effort, which House Democrat Hakeem Jeffries derided as “riddled with factual inaccuracies.”

For his part, Trump followed up his endorsement by dispatching both Vice President Pence and his son-in-law Jared Kushner to the GOP weekly lunch to press for action. Majority Leader McConnell, however, remained conspicuously mealy-mouthed:

“We also just had an extensive discussion of criminal justice in our conference, both those who believe we should go forward with a bill this year and those who think we should not. And as I indicated earlier, we’ll be whipping that to see whether — what the consensus is, if there is a consensus in our conference about not only the substance but the timing of moving forward with that particular piece of legislation.”

Admittedly, the legislative calendar is crowded and time is short. But those are circumstances for which McConnell must bear some considerable responsibility. And if he cannot or will not bring the Act to the floor for a vote this month, a major opportunity may be lost. With Democrats in control of the House in the next term, progressives in that chamber may press for more aggressive reform. But whatever the merits of such reform might be, it is unlikely to find support in the Senate. As the Wall Street Journal concluded:

Passing these discrete measures would make it easier for Congress to build later on what works. Such incremental progress used to be standard procedure in Congress, and both parties now have a moment to put aside political cynicism and pass something that could improve American justice.

 

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A Remembrance of George H. W. Bush

The outpouring of tributes to George H. W. Bush has been heartfelt and deserved. Feeling that I could not match the eloquence of many of those tributes, I asked my dear friend and Contributing Editor, Suzanne Garment for help. Suzi responded with the following remembrance that I think captures the spirit of the man and the moment.

On my daughter Annie’s living room wall, there’s a framed orange manila folder with writing on it:

“To Annie Garment, Love — George Bush.”

Underneath the inscription, Annie’s father, my late husband Leonard Garment, wrote her this explanation:

“8/18/88 10:55 P.M. Dear Annie, This was the first ‘autograph’ signed by President Bush, then Candidate Bush, immediately after his return to his suite in the Marriott Hotel in New Orleans following the delivery of his speech accepting the nomination. Save it. It is a piece of history. Love, Dad.”

The acceptance speech was in the orange folder. Annie was seven years old.

President George H.W. Bush died yesterday at the age of 94, so I’m thinking of the orange folder and the fact that Len, who had a keener sense of history than I did, knew that a marker of significance in the history of an American president is no small gift to give a child.

At least it was no small gift then, when the dignity of the office was matched and perpetuated by the dignity of its occupant. So, the orange folder is a reminder of an aspiration and an obligation — that one day we’ll think of the presidency in this way again and that we have to do what we can to bring about the repair.

It’s not hard for me to accept an obligation like this. I have grandchildren. But, in one way or another, we all have grandchildren.  ~