Déjà vu all over again?

I have tracked the various criminal justice reform bills for decades from a unique perspective inside the federal prison system. Each time, it’s the same old song and dance. First come the press releases; then rumors run rampant with the prison population while NGOs and politicians raise money for all the “wonderful work” they are doing regarding reform.  Families then celebrate and people within the system line up at the door for release. The last phase of the process is disappointment when nothing comes to fruition as everyone waits to repeat the vicious cycle. Is this time different?

We have been at this juncture many times before with high expectations. It is easy to get caught up in the hype given social media and especially after the barrage of stories and press releases last night followed by the statements made by President Trump. While I usually cry foul at this time, I’m willing to finally say there is a small chance something will get passed in the lame duck session but that’s about as far as I am willing to go.

I am writing this article to briefly clarify where we are at in the process to combat rumors within the prison population and provide a sense of reality to the false expectations I am already hearing.  My Corrlinks is lighting up as we wait for the final compromise draft so I’m basing this article on the First Step Act as passed in the House and the statements released by the various politicians and advocacy groups in tune with the process.

The First Step Act (FSA) as passed in the House was dead on arrival in the Senate because it lacked the front end reforms (referenced below) in the Sentencing Reform and Corrections Act (SRACA) sponsored by Senator Grassley. This caused a rift in the advocacy world between the front end and back end reformers. At this point, the breakthrough agreement is a compromise solution to combine the bills to include both front end (sentencing related) and back end (prison related) measures.

As a BOP insider, I (nor the BOP) are fans of the way the back end measures are written from a practical policy perspective. The same word continues to come up when speaking with the BOP and the word is “convoluted”. While it’s premature to get into the weeds of each prison issue; they generally revolve around incentives for new, evidenced based educational and vocational programing, a new risk assessment tool, extended RRC (aka: halfway house) placement for earned good time credits and the correction to the way the BOP calculates good conduct time to every year sentenced vs served (54 from 47 ). Aside from the potential for retroactivity to this recalculation, the remainder of the back end measures will take years to implement.

The BOP must first “develop” a new risk assessment tool and has one year to develop it after the bill is passed. In addition, the programs already completed prior to the passage of the bill are not credited for the additional good time credits. Overall, the BOP is given far too much discretion on who receives the credit and/or incentives.  Those of you who remember “The Jason Chaffetz bill” might remember how it came under attack by the Federal Public and Community Defenders for being discriminatory. People should not be punished and awarded more good time based on their crime. The sentence is the punishment and it is the unequal treatment of people in the system that might serve a political sound bite but its the same flawed “tough on crime” logic that got us this Jim Crow incarceration nation to begin with!

What most politicians fail to realize is that the BOP does not have the bed space capacity for longer RRC placements to begin with, which is one of the major incentives regarding the extra good time credits. The current infrastructure has not even be able to Honor the intent of the Second Chance Act of 2007, plus the contracting process for additional beds is a complicated and a multi-year process. While all these measures sound practical to politicians, they are not.

The much needed front end measures as reported include:

Eliminate the “924 stacking” regulation making it a federal crime to commit a federal crime while you have a gun

Eliminate “three strikes” and you’re out mandating that three-time offenders receive a life sentence. Expand “the drug safety valve” to allow judges to make an exception for nonviolent drug offenders when it comes to mandatory minimum sentences.

Make the “Fair Sentencing Act” of 2010, which reduced the sentencing disparity between offenses for crack and power cocaine, so that pre-2010 offenders have the right to retroactively seek a reduction in sentencing.

Let’s hope the front end measures referenced above remain intact while someone brings some sanity to the BOP related measures which is unlikely. Senator Mitch McConnell has already made some cautionary statements regarding the ability to get the legislation through this session given other priorities while some democrats feel they may be able to get a broader bill when they take control of Congress.  That may be the best curse of action so stay tuned……