Sentencing reform is moving in the wrong direction

Sentencing reform is moving in the wrong direction
© Greg Nash

In 2015, Senator Chuck GrassleyCharles (Chuck) Ernest GrassleyKavanaugh returns questionnaire to Senate panel Sunk judicial pick spills over into Supreme Court fight Andrew Wheeler must reverse damage to American heartland MORE introduced a long awaited bi-partisan criminal justice reform bill designed to address inequities in federal sentencing and promote rehabilitation and re-entry for persons who are incarcerated.

The Sentencing Reform and Corrections Act (SRCA) was a compromise that fell far short of the comprehensive criminal justice reforms that are needed to truly transform the nation’s criminal justice system; and yet, the NAACP Legal Defense and Educational Fund, and many of our civil rights coalition partners, generally supported this compromise. Limited sentencing reforms were easier to accept in 2015, under a Department of Justice itself dedicated to policing reform and to reforming its own charging policies with the goal of reducing the impact of overly harsh sentences.

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However, the Department of Justice is now led by Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsData confirm that marijuana decriminalization is long overdue The FIRST STEP Act sets up a dangerous future The Sessions DOJ is working to end the great asylum hustle MORE. Session’s DOJ has not only abandoned policing reform but is ramping up the now discredited “war on drugs,” re-opening the flood gates to our nation’s federal prisons. Under these circumstances, it would be a critical mistake to pursue strategies that do not include reforming the front-end of the system or sentencing.

Unfortunately, some in Congress have decided to do just that: pursue a criminal justice reform strategy that does not include sentencing reform but focuses instead on so-called prison reform, the back-end of the system. These proposals will not meaningfully reform the federal criminal justice system. Indeed, states have pursued the opposite strategy, adopting both front-end and back-end reforms that have reduced both incarceration rates and crime.

Proposals without, at least, front and back-end reform will not achieve these results. Without sentencing reform that eliminates mandatory minimums, reduces the prison population, and addresses the disparate impact of our criminal justice system on communities of color, these proposals will have little impact.

Proposals pending in the House Judiciary Committee are particularly troubling. They do not include sentencing reform, focus solely on prison reform, and undermine bipartisan efforts to develop a comprehensive reform package that most Americans support. For example, they would allow people to participate in reentry and rehabilitation programs and earn time credits that would permit them to serve a portion of their sentences in home confinement, halfway houses, or community supervision.

These initiatives do not reduce inmate sentences, but, rather, just shift inmates to being incarcerated in an alternate location. There are also not enough resources to support the proposed expanded supervision for home confinement and community supervision, and there is no bed space for people to go to halfway houses early.

Also, House proposals would exclude too many people currently in prison from early release even though the vast majority of these individuals would still be coming home one day. These exclusions would likely have a disparate impact on racial minorities because the proposals exclude individuals convicted of certain immigration and drug-related offenses. These types of offenses account for 53.3 percent of the total federal prison population and are made up of mostly minorities, so the bill is likely to neglect a significant portion of the prison population and exacerbate racial disparities.

Finally, the tools that would be used to assess the relative risk of participants reoffending would likely disproportionately exclude people of color from the programming. The prison reform proposals would allow Sessions and the Bureau of Prisons (BOP) to develop the assessment, and permit BOP to use its existing classification system, which primarily depends on static factors that correlate with socioeconomic class and race, such as criminal history, to assess the risk. Studies have shown that African Americans are more likely to be misclassified as high-risk than their white counterparts. So, these proposals will not only fail to reduce crime or rates of mass incarceration, but also not achieve meaningful prison reform.

We need comprehensive, meaningful criminal justice reform to create a fair equitable justice system. We cannot accept proposals that not only take us backwards, but may actually harm the communities we serve.

Todd A. Cox is policy director at the NAACP Legal Defense and Educational Fund, Inc.