The Promise and Peril of Criminal Justice Reform Under Trump


On Tuesday, the Senate overwhelmingly passed the First Step Act, legislation that has been described in the mainstream press as “the most far-reaching overhaul of the criminal justice system in a generation” and “a testament to how far the country has moved on criminal justice in the past two decades.” On Thursday, the House did the same, and the bill will now go to Donald Trump, who is expected to sign it.

The First Step Act has united what appears at first glance to be an unlikely coalition of typically disparate political actors—its supporters include Trump himself and his son-in-law Jared Kushner, to the activist Van Jones, the Koch brothers, the Sentencing Project, and the ACLU. (As Osita Nwanevu wrote in the New Yorker, “The significant buy-in from the right is the culmination of years of effort from a cadre of libertarian-leaning conservatives, like the anti-tax zealot Grover Norquist, and evangelicals, such as Chuck Colson, the founder of the Christian nonprofit organization Prison Fellowship, who have worked to convince others that the prison system has become too costly, punitive, and government-empowering.”)

Yet given the bipartisan nature of its support, the legislation is modest and limited in scope. One of the most touted changes makes the Fair Sentencing Act of 2010—which reduced the sentencing disparity between possession of crack cocaine and powder cocaine—retroactive, allowing people in federal prison who were convicted under the old mandatory minimums to apply for modifications to their sentence. Kara Gotsch of the Sentencing Project estimated to Jezebel that 2,600 people—who are disproportionately black—could now qualify for sentence reductions.

It also includes other changes to federal sentencing laws, as detailed by the New York Times:

One would shorten mandatory minimum sentences for some nonviolent drug offenses, including lowering the mandatory “three strikes” penalty from life in prison to 25 years. Another would provide judges greater liberty to use so-called safety valves to go around mandatory minimums in some cases. The bill would also clarify that the so-called stacking mechanism making it a federal crime to possess a firearm while committing another crime, like a drug offense, should apply only to individuals who have previously been convicted.

The legislation also expands the use of “good time” credits that allow certain people convicted of non-violent offenses to slightly reduce their sentences and get out of prison earlier, and creates “earned time” credits that would allow—again, only a select few—people to be released into post-prison transitional programs such as home confinement, what Gotsch likened to a form of parole. A few other provisions are noteworthy—it would largely ban the shackling of pregnant people in federal prison, for one.

As a result of all of these changes, according to Vox, “the bill will let a few thousand inmates—probably around 6,000 to 7,000—out of prison early once it’s enacted, and slightly shorten prison sentences in the future.” (Meanwhile, more than 200,000 people are currently incarcerated in the federal prison system, itself a small percentage of the people who are incarcerated nationwide.)

Still, “the significance of the First Step Act,” wrote the Washington Post editorial board, “should not be understated.” Yet as many have pointed out, the limitations of the bill are right there in its name, and it merely “steers the federal prison system in a slightly gentler direction,” noted the Marshall Project.

The legislation has not been welcomed by everyone. While the opposition of conservative anti-crime zealots is not surprising, many progressive prison reformers have also raised objections to the First Step Act, pointing to its limited scope (it does little to support incarcerated people who are in federal prison for committing so-called violent crimes, for one) and to its embrace of what Michelle Alexander has described as e-carceration, the use of algorithms, electronic monitoring, and surveillance programs that are, she’s written, “the next generation of racial and social control.” Those fears are warranted. As the Tampa Bay-Times reported, the GEO Group and CoreCivic, two of the nation’s largest private prison companies that have both recently begun providing post-prison rehabilitation services, backed the bill, likely due to the fact that they likely stand to profit from its passage.

“Even if old-fashioned prisons fade away,” Alexander wrote, “the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control.”

What to make of the First Step Act, then? We turned to Elizabeth Hinton, the author of From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America and a history and African American Studies professor at Harvard. Hinton has studied the rise of mass incarceration in the United States and how we became the home of the world’s largest prison system. The short of it: the drive to lock people up is thoroughly bipartisan.

Jezebel spoke with Hinton on both the promise and the peril of the First Step Act, how decades of bipartisan efforts created the system of mass incarceration we have today, and what needs to happen next. As Hinton told us, “Dealing with this issue in a real, robust, and comprehensive way means that we’re also going to have rethink the ways that we punish people who are convicted of violent crimes.”

This interview has been lightly edited and condensed for clarity.

JEZEBEL: What are your thoughts on the First Step Act?

ELIZABETH HINTON: I think it represents a triumph of a generation of activism and growing awareness on the part of policy-makers, researchers, and the public that the war on drugs has not been effective and that our criminal justice policies are extremely punitive. The U.S. has the largest prison system on the planet, and so I think that this legislation and, in the best sense, represents the triumph of that, and is a real attempt to begin to scale back our extremely harsh drug policies, and also is a new embrace of the notion that people do deserve second chances, that the government has the responsibility to provide people who have been incarcerated resources to make a better life for themselves and their families when they return to society.

So I think that’s the kind of silver lining in the legislation. But, on the whole, I’m very cautiously optimistic because while there are many things in the legislation that are important reforms, if they’re not implemented correctly, the legislation in practice could be extremely regressive in a number of senses, and it’s really only a very tiny baby step.

Because it is so limited in its scope, that won’t really make a significant dent on our major mass incarceration problem in this country, and it also doesn’t necessarily provide the kind of comprehensive resources and opportunities necessary for formerly incarcerated people to successfully return to society and be able to really realize a second chance and create a new life for themselves and their families.

How might it be regressive?

Most fundamentally, the legislation is really based around good time credit and the use of algorithms and risk assessment tools to determine who can be released, up to 54 days early. And so, we know that historically, whether these risk assessment tools are used to finance loans, and even in the way that they’re being used for policing and criminal justice outcomes, they end up reproducing extreme, extreme racial disparity within the criminal legal system.

So, I think unless these risk assessment tools are really attuned to the impact of racial inequality, they will not address, and they deepen and worsen many of the existing racial disparities in the criminal justice system.

Those risk assessment tools are not neutral.

Exactly, and the way the legislation treats them, they’re essentially treated as neutral or as this progressive thing, when in fact, we know that these risk assessment tools don’t take into account, in a meaningful way, the impact of and the intersections between racial discrimination and poverty.

It gives prison authorities a lot of discretion in determining who will be eligible for some of the more progressive elements of the legislation. So, for instance, one of the things that I think is extremely important, especially for women who are incarcerated and ensnared in the criminal justice system, is that this legislation ends the practice of shackling women during childbirth.

But it does have an important clause for that, which is that if a prisoner is determined by authorities to be particularly dangerous, or some kind of a flight risk, that they won’t necessarily have a chance to enjoy giving childbirth outside their chains. And so, if an individual administrator feels like somebody should be shackled, this could still be used as a form of abuse, brutality, and punishment for women who are pregnant and incarcerated.

One thing that’s been on my mind is how the First Step Act has been framed as bipartisan reform and that finally conservatives and Republicans are catching on to the need for criminal justice reform and prison reform, as if Democrats and liberals have been champions of that for a long time. But I think your research says something different. Can you talk about your research and what it’s highlighted in terms of what actually has been bipartisan when we talk about prisons and incarceration?

It’s really interesting that especially in this moment of great partisan discord that the passing of this legislation in the Senate is being framed as this Christmas story where Democrats and Republicans are coming together before the holidays to enact really important reforms. The thing that I don’t think most people don’t understand is that Democrats have really been the architects of the modern criminal justice system and the kinds of policing practices that we see that are leading to growing awareness of the kinds of retaliation that many people of color experience at the hands of police. Not only punitive measures, but also the kind of support of the largest prison system in world history.

And so Lyndon Johnson was the first major architect of modern American criminal justice. Back in 1965, it was his criminal justice reform, really part of the larger impact he was trying to make in terms of American social policy through the Great Society program. Richard Nixon, who is often credited as the originator of the war on drugs, already stepped into a robust federal system and increasing state system that the Johnson administration helped to build, as did Ronald Reagan.

And the next major turn in criminal justice policy, the next major landmark policy that we get after Johnson’s 1968 Omnibus Crime Control and Safe Streets Act is President Bill Clinton’s Violent Crime Control Act of 1994, which more than any other single piece of legislation really led to mass incarceration as we know it today—an explosion of prison populations. And this system, the consequences of the choices that went into that legislation is what the Trump administration is dealing with today.

So, in many respects, Democratic or liberal administrations are stepping into a system that was designed and created by Democratic administrations and some policy makers who we hold up as the great liberal progressives of the 20th century.

If we actually look at the support for criminal justice reform over the past century, this has really always been the issue where conservative and liberal interests have been intertwined. The commitment to harsh policing practices, to draconian sentences, this is perhaps the domestic policy issue in the late 20th century that [Democrats] and Republicans have always agreed upon.

So, the bipartisan nature of support for this policy should not come as a surprise to us. The drive to lock people up and to consistently respond to socioeconomic social problems with policing, surveillance, and incarceration is a thoroughly bipartisan measure.

What would you say has led to this renewed drive under a Trump administration to begin to take these baby steps—

Baby steps.

—in addressing the issue of mass incarceration?

The fiscal drain of housing the world’s largest prison population is something that can no longer be ignored. It’s expensive, and we simply have to do something to begin to reduce prison populations, which is why people from Newt Gingrich to Van Jones and the Koch brothers have supported new approaches to criminal justice, and small efforts at de-carceration, and usually these kind of coalesce around the decriminalization or de-carceration of nonviolent drug offenders.

Another piece of it is because we are a mass incarceration society and there are millions of people, one in 31 Americans, under some form of criminal justice supervision, there’s a lot of money to be made in providing services and providing what Michelle Alexander calls e-carceration of people.

That means that the private prison lobby is not just private prison institutions, it’s also privatized groups like [the] GEO [Group], who control all kind of telephones, calls, and video conferencing between prisoners and their families, [and] are also increasingly lobbying for technology-based forms of prison education. The early release programs and the transition to halfway houses and some to even home detention opens up new possibilities for the private security industry to develop things like tethers and various forms of electronic surveillance that opens up a lot of money for private companies to make off of incarcerated people and formerly incarcerated people and their families.

It’s quite possible that some of these private groups got into the ear of a number of policy makers who might have been resistant to the bill initially and said, “Actually, this opens up new possibilities for us in this field, and should be something that everybody supports.”

I’m really struck by how the financial argument against mass incarceration often leaves out people who have committed what most people would call violent offenses. That seems like a critique of the legislation, that it maintains that very clear divide between nonviolent offenders and people who have committed so-called violent crimes.

I think we need to be really cautious of the kind of categories that the legislation establishes that we first began to see as the Obama administration began this new wave of federal reform, where we have two categories of offenders, one category of deserving, nonviolent drug offenders, and the other of violent offenders who should be placed in prison for very long periods of time. The thing is, if we look at the U.S. comparatively, we still punish so-called violent offenders far more harshly than any other industrialized nation, or our peers. Especially our tendency to sentence people to life without parole sentences.

So there are about 50,000 people currently sentenced to life without the possibility of parole in the U.S. That is nearly equal to the entire incarcerated population of Japan. So, if we really want to deal with our prison problem in a meaningful way, we’re going to have to rethink the ways in which we actually sentence people, and for what crimes, because we impose particularly harsh sentences on people, and as the best research has really made clear, defendants of color and particularly African-Americans are far more likely to receive harsh sentences for the same crimes as their white counterparts.

So dealing with this issue in a real, robust, and comprehensive way means that we’re also going to have rethink the ways that we punish people who are convicted of violent crimes.

And that’s not something that’s going to be driven by the Koch brothers or Jared Kushner.

I think this is one of the more difficult pieces of thinking about how to change our system, is how do we convince people that even those who have committed what might be heinous crimes, also deserve a second chance. Also thinking about the largest avenues through which violent crimes are committed. In what ways is the kind of gun violence we see deeply in certain communities, and low-income urban communities, deeply tied to informal economies and the long-term impact of de-industrialization and structural exclusion on communities where there’s really no economy. In many places, the drug economy and operating in a drug economy means in a lot of instances that you are forced to, or that you must, for your own protection, carry a weapon.

We need a more comprehensive understanding of violence in the U.S., and with that, a rethinking of our gun policies. So, I think that this issue is connected to a number of issues really at the center of some of the public safety problem in general in the U.S. and our gun violence problem in the U.S.

What do you think about its potential to spur reform on the state level, which, as many people have pointed out, really drives prison policy in the U.S.?

Of course, this legislation only applies to federal prison and it looks like, by some of the calculations I’ve read, it really has the potential to only address about 4 percent of the entire prison population in the U.S. But historically the states have really followed the federal government’s lead in enacting their criminal justice policies, from mandatory minimum sentences to the shift in trying kids as adults for certain crimes. These are initiatives that the federal government was the first, or one of the first to enact, and then states feel more comfortable to follow suit.

So I think that what this legislation does for policy makers at all levels is really place the issue of reentry and de-carceration for drug offenses at the center of criminal justice reform policies. I do hope that states begin to follow the federal government’s lead in terms of the possibility of releasing people early, and I think that’s one of the real triumphs of the legislation. The potential to be released 54 days earlier can make all of the difference in an individual’s life. So, regardless of the critiques of the legislation, and I personally have many, I think on an individual level, getting out a couple months early can make an enormous difference, not only in an individual’s life, but also the life of his or her family, and by extension, communities that have been ravaged by the impact of that incarceration.

Some people have said the inclusion of provisions like that are reasons to not support the bill. And this is coming from progressive criminal justice reformers. What do you think about that?

I think on an individual level, the potential for early release is crucial, and I think this bill sets a new precedent that we can use to build momentum for the kind of meaningful reforms that we want to see. I’d rather the bill pass than not, and as much as I’m deeply critical of the bill, if it can help one or two people, honestly, then the bill is successful in that respect.

At least, I’d like to remain optimistic about that. I do think, as I mentioned, that the bill does contain many dangerous provisions that, if they’re not implemented correctly, and if we’re not really dealing with the disparity and the racism that really fuels the system and the more punitive policies behind it, we will continue to be bifurcated as a country along lines of race, class, and citizenship status. And the bill directly retains that bifurcation around citizenship status because immigrants are excluded from the early release provision. Unless we’re careful, it could reify racial disparities and divisions in this country.

But having your mom or dad home two months early can make an enormous impact in that mom or dad’s life, or that kid’s life. So, anything that’s going get people out early, anything that will lead to a reduction in the prison population is something that I think we should support and should be seen as a victory, even if it’s a little, tiny, infant step act.

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