It’s election season, so of course candidates on each side are predicting doom and gloom if the other prevails. However, on criminal justice reform, recent history suggests even a divided government can prioritize public safety without being too tough on taxpayers. At the federal level, this meeting of the minds culminated in the First Step Act passed by Congress and signed by President Donald Trump in December 2018.
Indeed, significant progress has been made. As of Aug. 20, there were 156,415 federal prisoners, a sharp decline from the 2012 peak of 218,687.
The First Step Act was inspired by reforms in states like Texas, which, since its 2007 shift away from building more prisons and toward community-based supervision and treatment, has cut crime 40 percent while reducing incarceration by 34 percent. As the “first step” moniker implies, there is still unfinished business at the federal level.
We can start by making retroactive the drug sentencing reform provisions in the First Step Act. Doing so could benefit 4,000 people. These provisions were hardly radical. One reduced mandatory life without parole for a third felony drug offense to 25 years and dropped the 20-year mandatory minimum for a second felony drug offense to 15 years. The First Step Act also expanded the safety valve that allows a court to impose a prison sentence slightly below the mandatory minimum in cases involving low-level drug offenses by those with little criminal history, but this was also only prospective.
The case for retroactivity is even stronger following a U.S. Sentencing Commission study in July demonstrating that reducing time served for drug offenses does not increase recidivism.
Action should also be taken to streamline federal probation. The average federal probation term is 41 months, but a two-year term is slightly more effective than a three-year term for reducing recidivism.
Since 2007, many states have adopted earned-time policies that provide an incentive for exemplary conduct while on community supervision. Results from Missouri show this lowered caseloads while preserving public safety. Additionally, 7 in 10 revocations from federal probation occur due to technical violations, such as missed meetings or positive drug tests. States, including South Carolina, have seen positive results from recent policies to reduce such revocations through graduated sanctions. A survey of federal judges found they want more discretion to use alternatives to revocation in responding to positive drug tests, suggesting a need for Congress to act.
Action is also needed on record sealing and certificates of rehabilitation. The bipartisan Clean Slate Act would seal the records of a low-level federal drug possession offense after two years if the person has not reoffended. This legislation would help someone found with a joint in an airport or national park when they seek employment and housing.
To address a wider range of cases, Sen. John Cornyn, R-Texas, has joined Sen. Sheldon Whitehouse, D-R.I., on a bipartisan proposal for creating federal certificates of rehabilitation, which research has shown improve employment outcomes.
Recent months have seen a disturbing uptick in shootings in many cities, even as overall crime rates remain at historically low levels and have declined even more in major cities since the pandemic. While policing must largely remain a local function, federal grant programs can play a complementary role by funding strategies likely to reduce violence. Focused deterrence and violence interruption programs received a nod in Trump’s June 16 executive order and are backed by local leaders like Dallas Mayor Eric Johnson.
Such initiatives often involve partnerships between law enforcement and credible messengers. These include people who were formerly incarcerated, often gang members, before turning their lives around, positioning them to help others avoid the same mistakes. After implementing such a model in 2012, known as Ceasefire, Oakland, Calif., cut its shootings in half by 2018.
These programs wisely target resources and interventions to the very small percentage of the population statistically most likely to shoot someone or be shot, and provide these individuals with positive pathways, such as connections to employment and mentoring. At the same time, they build trust between communities and law enforcement, and unequivocally communicate that acts of violence will be prosecuted.
Criminal justice policy deeply impacts lives and liberties. It is too important to be the province of any one political party or candidate. Regardless of what this election holds, we all benefit if our leaders take the next steps toward a federal system that balances the need for incarceration in some cases with the goals of promoting second chances and preventing crime.