In last week’s presidential debate, President Donald Trump declared, “I got criminal justice reform done and prison reform…” Referring to opponent Joe Biden’s eight years as vice president under Barack Obama, he said, “you guys did nothing.”
The president didn’t name his chief accomplishment that night, but elsewhere he has cited his signing of the First Step Act, a sentencing and prison reform measure that was passed by Congress in late 2018.
Trump can rightly accept praise for approving the statute, which some in his own party had criticized, including his former Attorney General, ex-Alabama Sen. Jeff Sessions.
It’s also true that Trump was late to the process of weighing in on the law, speaking out in favor of it starting only in the summer and fall of 2018, shortly before it was approved on Capitol Hill after versions of it had been considered for nearly a decade.
The First Step Act was indeed one of the fairly rare criminal justice reforms to make it through the federal legislative process in recent years.
Trump has sought to portray it as a counterweight to the wide-ranging federal anticrime law passed in 1994, when Biden chaired the Senate Judiciary Committee.
Among other things, the 1994 measure authorized federal aid to states for prison building, which has been blamed for some of the nation’s mass incarceration.
Still, critics who followed the First Step Act’s long path through the legislative process contend that Trump has vastly exaggerated the impact of the statute and his role in it.
One of them is Malcolm Young, Washington, a D.C.-based lawyer who founded the Sentencing Project and has run a re-entry program for federal prisoners..
In a summary issued this week, Young declared that the law is “neither the first nor largest federal sentencing reform in recent years.”
Young says that changes in sentences for crack cocaine offenses dating to the George W. Bush administration in 2007 reduced the level of federal imprisonment almost as much as the First Step Act, and several sentencing reforms during the Obama administration cut federal imprisonment totals by twice as much as did First Step.
The new law put in motion a system for prisoner re-entry into society built on what Young calls “a misplaced reliance on scored risk assessments and non-existent evidence-based programs, which Young says are attributable to Congress rather than to Trump. He adds that, “COVID-19 has rendered the ‘“system’ inoperable.”
Young also notes that Trump has nominated five people to fill vacancies on the U.S. States Sentencing Commission, which advises federal judges on sentencing issues, several of whom have “built their careers around long, ”tough’ sentences in criminal cases and are thought to be unlikely to advance sentencing reform.”
Trump has long expressed “tough on crime” views and until 2018 was not associated with criminal justice reform.
His involvement in the issue is largely credited to his son-in-law and political adviser Jared Kushner, whose father served a 14-month federal prison term for several white-collar-crime offenses.
In an article for the Cardozo Law Review tracing the recent history of federal sentencing reform efforts, Jesselyn McCurdy of the American Civil Liberties Union said that Kushner “concluded the best chance to achieve reform would be to focus on prison or ‘back end’ reform, but not sentencing reform.”
McCurdy says that only in August 2018, “After it became painfully clear that Senators [Charles] Grassley [R-IA] and [Richard] Durbin [D-IL] as well as many criminal justice and civil rights groups would not support federal legislation without sentencing reforms, the White House and Jared Kushner for the first time signaled” that they were open to including some sentencing reforms in the bill.
Among them were reducing the mandatory minimum sentence for the federal “three strikes and you’re out” law from life without parole to 25 years, expanding a “safety valve” for low-level drug offenses that would allow judges to issue sentences below mandatory minimums and making retroactive a 2010 law that reduced the inequity between penalties for crack and powder cocaine offenses.
A similar account was offered in an article to be published in the NYU Annual Survey of American Law by Kara Gotsch and Marc Mauer of the Sentencing Project, who said that, “Despite the strong objections to the First Step Act from traditional proponents of justice reform, the bill was able to advance because of the support of the White House and the strong engagement of Jared Kushner,” who Gotsch and Mauer said “was dogged in lining up bipartisan supporters for prison reform.”
Although Trump mentions his support of the First Step Act periodically, the depth of his commitment was questioned in an article on the website Axios in July, which reported that, “Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately. He’s told them he only supported it because Kushner asked him to.
“Though he has repeatedly trumpeted it as a politically useful policy at times. Trump now says privately it was misguided to pursue this policy, undercutting his instincts.”
Citing data from the U.S. Sentencing Commission, analyst Young concludes that multiplying the number of prisoners whose incarceration was reduced by various provisions of the First Step Act by the average number of months of the reduction, more than 44,000 years worth of incarceration were eliminated by the law.
While that total is significant, Young says that three Obama-era reforms reduced prison use by more than 100,000 years worth of incarceration, and a separate Obama clemency initiative reduced federal prison use by nearly 20,000 years of incarceration.
Trump also has charged that the 1994 crime law championed by Biden increased incarceration nationally.
A report issued this year by the nonpartisan Council on Criminal Justice found that much of the growth in state prison populations preceded enactment of the federal law, and that the state prison population growth rate fell by half in the immediate aftermath of the Crime Bill’s enactment.”
Biden did concede in last week’s presidential debate that a bill passed during the 1980s that provided stiff penalties for drug abuse was a “mistake.”
“I’ve been trying to change since then particularly the portion on cocaine,” Biden said.
“That’s why I’ve been arguing that in fact we should not send anyone to jail for a pure drug offense, they should be going into treatment across the board, that’s what we should be spending money.”
Not one senator opposed the drug bill, Biden noted.
Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report.