Why no details about criminal justice ‘reform’?

With their determination and haste to reduce federal criminal sentences imposed by courts, bipartisan Senate supporters of the FIRST STEP Act, are intending to enact a revolution and “reform” in federal criminal law without an open and public discussion with the American people. The House has passed its own hasty version of the bill.

As its major provision, FIRST STEP establishes an entirely new “risk and needs assessment system,” whereby the Bureau of Prisons will have authority to reduce criminal sentences  imposed by judges by giving prisoners time off their sentences for participation in recidivism-reduction “programs” in the prison. The bill says almost nothing about the definition or content or limitations of such programs, but states that they may be academic, ethics, or life-skills classes, various kinds of personal counseling or treatments, and vocational training — that is, the kinds of activities that are already widely available in prisons.

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And how is the system to be constructed and implemented? Per the latest revision released on Dec. 14, the bill states that it must be “evidence-based,” and the programs developed in the system must be those that have “been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism.” There is no definition of exactly what constitutes “recidivism.” It will be an incentives system.  

For every 30 days of “successful participation” (not completion) in recidivism-reduction programs, the Bureau of Prisons “shall” award prisoners 10 days of “time credits” off each 30 days of their sentences. In addition, however, after further participation, a prisoner may earn an additional five days of time credits for every 30 days of successful participation. Overall, then, the new system can reduce a prisoner’s sentence by half.  What is more, the bureau “shall” discharge “lower-risk level” prisoners to home confinement for at least 10 percent of their terms of imprisonment. All this is on top of the 54 days of “good time” credit that all prisoners except lifers already receive annually for good behavior. 

The list of crimes that do not qualify for sentence reductions include several rare or esoteric crimes such as treason, terrorism, the use of chemical or biological weapons, human trafficking, female genital mutilation, and assaulting members of Congress. Crimes against children also are excluded. However, a host of more frequent crimes, including the violent crimes of robbery and carjacking committed without the use of a firearm and not resulting in death or serious bodily injury are eligible for reductions. Manslaughter and attempt to commit manslaughter are eligible.

Drug dealing that did not result in death or serious bodily injury will be eligible for reductions. Heroin and methamphetamine dealers who are leaders or organizers are excluded, but second- or third-level dealers can receive the credit. The current version of the ever-evolving bill has contradictory passages about fentanyl. (The word “fentanyl” does not occur in the bill; fentanyl’s long chemical description is used instead.) For the first time ever in federal law, the bill provides for the in-prison use of medications to treat opium and heroin addictions. The most used drugs for that purpose, as is widely known, are methadone and buprenorphine, both of which themselves are opioids.  

The bill requires the attorney general, in consultation with a newly created Independent Review Committee consisting of persons in the private sector, presumably social scientists, to develop the system within 210 days of the enactment of FIRST STEP and then in another 180 days to have it completely implemented by the Bureau of Prisons, including “a risk and needs assessment for each” prisoner that includes his or her “specific criminogenic needs.” Since there are 180,000 inmates in federal prisons, the Bureau of Prisons would have to complete 1,000 of such assessments every day over the 180 days.

In both the House and Senate, criminal justice “reform” has been conducted in a non-deliberative and non-transparent fashion. The House Judiciary Committee sent its version of FIRST STEP to the floor without any hearings. A so-called committee report that contained almost no description or analysis was made available to the whole House on the same day as the floor vote, which passed overwhelmingly. There was no debate; the bill passed essentially by acclamation; almost everyone was for “reform.” Likewise, in the Senate, there have been no hearings on the bill, and a newly revised version of the evolving bill was made available to the whole Senate, without consideration or votes of the Judiciary Committee, on Dec. 14. The Senate Judiciary Committee  has published a summary,  albeit a limited one.

With regard to changes to specific federal sentencing laws, the bill has a major purpose of increasing the discretion — and inevitably the subjective personal philosophies — of judges in imposing criminal sentences. With respect to that discretion, we might take note of the current and highly visible case concerning a former fraternity president at Baylor University who was allowed to plead to a charge of unlawful restraint in exchange for dismissal of four counts of sexual assault with a prosecutor’s recommendation, now accepted by the judge at sentencing, of no imprisonment. Likewise, indignation at the six-month sentence for sexual assault of Brock Turner never dissipated in California and led two years later to a successful recall of the sentencing judge in June of this year.

FIRST STEP carries with it the presumption that there is sufficient extant “evidence” to believe that a “recidivism reduction system” is possible and can be effective. Since the bill requires the attorney general to create the system within only 210 days from the date of the bill’s enactment, the “evidence” must be there; it has only to be organized into a system. And if it is there, why didn’t the Congress hold lengthy public hearings, gather the decisive evidence, and report it to the American people? An “evidence based” — that is, a proven — system based on research that solves the problem of crime by teaching criminals not to re-offend. Why did we not have such a system in place years ago?

One of the consequences of FIRST STEP will be to change the real outcome of federal criminal trials and sentences from a public event in a public court that is concerned with the question of justice to an unnoticed and hidden sociological decision by a secondary public agency. And left out of FIRST STEP are the victims of crime who gave their moral assent to the legitimacy of the criminal justice system when “justice was done” in their case. Now, they will never know. And what is the next step?

Thomas R. Ascik retired as a federal prosecutor in North Carolina after 28 years of service.