The Federal Criminal Justice Reform that Wasn’t

https://www.zmolaw.com/news/wp-content/uploads/2018/12/Screen-Shot-2018-12-29-at-9.03.52-PM-300x265.pngAs of December 27, there were 180,429 prisoners in federal custody. Think about that a minute — about a fifth the population of San Francisco behind bars for interstate crimes. No one seriously thinks this many people should be housed, clothed, fed, and secured with federal tax dollars. (More than 2 million people are incarcerated in the U.S. when you include state and local facilities, way more than any other country in the world, including China, which has four times as many people and notoriously strict laws).

There are two reasons for the staggering number of federal inmates: over-criminalization and excessive sentences. In other words, too many things you can do can land you in federal prison: crimes like fishing in the wrong waters, or charging a health insurer for dental work performed by an unlicensed dentist. And when people are locked up for federal crimes, it is for too long, like when a teenage street-level drug dealer is held liable for the whole drug conspiracy that he is part of.

So what a breath of fresh air when the lame-duck Congress briefly came together at the end of 2018 to agree on federal criminal justice reform. Pres. Donald J. Trump signed the so-called “First Step Act” into law on December 21. The press crowed that Trump would “go down in history” and that the changes represented a “sweeping reform.” Probably none of them read the 148-page law, which will have no effect on the vast majority of people caught up in the federal criminal justice system. At a human level, the most important provision of the new law is that it bans the barbaric practice of using restraints on female inmates as they are giving birth. You read that correctly. Until recently the Bureau of Prisons routinely shackled women in the hospital, in labor, as though they might take the opportunity to escape as their baby was being born. It took Donald Trump and a voted-out-of-office Republican congress to finally make that illegal.

The new law does do a few more good things.

It creates a new risk-and-needs assessment system for sentenced inmates with incentives that can lead to reduced terms of imprisonment if you complete certain programs. However, the incentives are only available to people who are not convicted of certain crimes. The list of excluded crimes is long and includes firearms possession, computer fraud, most violent crimes, child pornography, and failure to register as a sex offender, to name a few. If you are negotiating a federal plea, you should ask your lawyer to consider whether the government might let you plead to an offense that is not excluded from the new incentive system, which could result in less time in prison. The new law requires more use of home confinement for low-risk, low-needs inmates.

It increases time off for good behavior, to the full 54 days per year mandated by statute (fixing a loophole the Bureau of Prisons had used to give people only 47 days per year). It expands the compassionate release program for elderly prisoners, restricts the use of solitary confinement for juveniles, ensures that prisoners will be placed in facilities within 500 miles of home, and reduces the brutal penalties imposed on some repeat offenders.

The First Step Act also slightly broadens the “safety valve,” which is an often-misunderstood provision that allows some low-level drug offenders to avoid mandatory minimum sentences if, and only if, they are willing to provide the government “all information and evidence” they have concerning their crime. Under the First Step Act, people with slightly more prior offenses will qualify for safety valve relief.

In addition, the new law can provide relief for some long-time prisoners who were sentenced under the crazy-high provisions for crack dealers. Specifically, it makes the Fair Sentencing Act retroactive, so inmates sentenced for crack cocaine offenses before 2010 have an opportunity to petition their sentencing judge to reduce their sentence. The potential reduction is based on the sentencing disparity between crack and powder cocaine, which used to be 100-1 and is now 28-1.

Don’t get me wrong. The First Step Act moves the ball in the right direction, just not very far. It is another incremental reform that will help undo some of the harm caused since the 1980s by the creation of new federal crimes and increases in sentences, especially for drugs, fraud and child pornography possession. But the First Step Act is nothing like the sweeping criminal justice reform advertised by some proponents, and not nearly enough to make the federal criminal justice system sensible, or in line with the rest of the world.

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