The Senate’s approval of the First Step bill raises a fundamental question about the future prospects for reform in the American criminal justice system.
By now, the need for justice reform has become part of a bipartisan consensus that includes advocates, celebrities and legislators at both the federal and state levels.
We routinely hear about the need to address mass incarceration, use of lethal force by the police, racial bias in prosecution and sentencing, the lack of resources for indigent defense, recidivism and the revolving door, and the enormous cost of running the world’s largest correctional system.
The advocacy and legislative efforts are well supported by public opinion.
The vast majority of Americans (over 90 percent) support criminal justice reform. Nearly three-quarters believe prison populations should be reduced, and over 70 percent would vote for a candidate advocating for the elimination of mandatory sentences. Most (84 percent) believe individuals with mental illness belong in mental health treatment, not prison.
On one level this is all good news. There is widespread recognition that American criminal justice is in need of fixing and there is some movement to begin repairs.
However, I see two major problems with current efforts at criminal justice reform.
The first is that there is no consensus about what reform means. It seems that one common denominator is the reduction of prison populations. There has been a decline of nearly 7 percent in the number of prisoners since the peak in 2009.
But, I would ask, to what end? What are we trying to accomplish other than reductions in numbers – prisoners and dollars?
Many states have gotten their feet wet by modestly reducing their prison populations, a response to the recession of the late 2000s and the fiscal pressure it put on state governments?
What is happening to those whom we don’t incarcerate?
The last time we made substantial changes to the criminal justice system, we had a unifying rallying cry. It was the simple mantra “tough on crime.”
That led to a number of catchy slogans (“do the crime, do the time” and “lock ‘em up and throw away the key”), which provided a pretty clear road map for justice policy.
I suggest that there are two different unifying themes or rallying cries this time around.
One addresses what I think should be the primary outcome of a properly functioning criminal justice system: recidivism reduction.
If the end game is reducing re-offending, then the focus should be on changing behavior through means other than simple punishment.
We know that the vast majority of offenders in the justice system have a variety of criminogenic disorders, deficits, impairments, and circumstances. The evidence is clear that the only way to reduce re-offending is to address these criminogenic factors.
We also know that punishment usually serves to aggravate these already serious conditions.
The other theme for reform focuses on procedural, due process matters and includes things like use of force by police, racial disparities in prosecution and sentencing, problems with plea bargaining, wrongful conviction, and seriously underfunded indigent defense, among others.
Granted, this is more of a collection of issues, which poses challenges in terms of a homogeneous strategy. Nevertheless, due process is a foundational concern that deserves serious attention.
One final thought. While it is necessary to recognize and applaud changes to date, I believe it is important in the same breath to acknowledge that what has been done so far is piecemeal.
The First Step Act, for example, is lauded as a federal criminal justice reform. But the reality is more modest. It reduces some mandatory sentences for serious drug offenses from 20 to 15 years, and for repeat drug offenders from life to 25 years.
It also gives federal inmates more good time credits toward early release and provides some expansion of job training and educational programming in prison. There is very little here that is aimed at reducing reoffending or addressing due process.
My fear is that such partial efforts will fulfill the reform mandate for many legislators.
The truth is that it is just the beginning.
Kelly is professor of sociology at the University of Texas at Austin and the author of four books on criminal justice reform. He discussed his latest book, co-written with U.S. District Judge Robert Pitman, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” in a recent conversation with TCR’s J. Gabriel Ware.