The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House. The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms. So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?
By passing sentencing reform that doesn’t look like sentencing reform.
Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer. It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.
As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former.
Even bipartisan support has proven insufficient to overcome these kinds of arguments. Despite widespread backing in Congress, a supportive president and even a few sentencing enhancements, legislation that included sentence reductions and mandatory-minimum reforms stalled last Congress. Notwithstanding Sen. Chuck GrassleyChuck GrassleyOvernight Health Care — Presented by Carequest — FDA moves to sell hearing aids over-the-counter McConnell: GOP should focus on future, not 'rehash' 2020 Iowa Democratic Party chair says he received multiple threats after op-ed critical of Trump MORE’s (R-Iowa) optimism, prospects for a similar bill, the Sentencing Reform and Corrections Act of 2017, are even dimmer now that we have an attorney general who believes “[b]eing soft on sentencing means more violent crime.” As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.
So, if traditional sentencing reform is dead in the water, what’s left?
Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin. Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend. Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.
These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise. Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next. Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence. Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.
Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society.
At its core, an offer of early release for the completion of recidivism reduction and reintegration programs is an opportunity for policymakers to be tough but fair. An earlier return to society is something to be earned, not given. It’s easy to see how this could nestle into the criminal justice agenda of a president who claims “[w]e will be very tough on crime, but we will provide a ladder of opportunity for the future.”
Of course, these programs need not be sold only as criminal justice measures. Securing and holding a job is rightfully seen as one of the primary markers of successful reintegration and a surefire way to reduce recidivism. Proponents could easily brand reintegration programs in economic terms as pro-jobs initiatives, which would likely endear them to a president who endeavors to be the “greatest jobs president God ever created.”
With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug CollinsDouglas (Doug) Allen CollinsLoeffler meets with McConnell amid speculation of another Senate run Georgia agriculture commissioner launches Senate campaign against Warnock Poll shows tight GOP primary for Georgia governor MORE' (R-Ga.) Prison Reform and Redemption Act.
While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.
Lars Trautman is a senior fellow with the R Street Institute, a nonprofit group aimed at promoting limited government.