Every bill in Congress should have two names -- one attached by its supporters and one by its opponents. H.R. 5682, passed by the House earlier this summer, is titled the FIRST STEP Act, but I would call it the Faux Pas Act.
The drive to put ever more criminals and more dangerous ones on the streets gathers steam, funded by Soros money on the left and Koch money on the libertarian side, leaving relatively few defenders of the strong and sensible policies that have been a major factor in the tremendous drop in crime since the peak in the early 1990s. Senator Tom Cotton of Arkansas is one of the few, and he has this op-ed in the WSJ with the above headline.
While the House bill has some flaws, the Senate can fix them on a bipartisan basis. But under no circumstances should Congress cut mandatory minimum sentences for serious crimes or give judges more discretion to reduce those sentences. That foolish approach is not criminal-justice reform--it's a jailbreak that would endanger communities and undercut President Trump's campaign promise to restore law and order.
"Some flaws" is an understatement. Here is a letter I sent Senator Cotton in July, explaining the flaws in more detail.
But wait, there's more. Paul Mirengoff has this post at Powerline warning that an even-worse version is gaining momentum in the Senate. I understand that version has not yet been formally introduced. Let's hope that the misguided Senators see what they are doing before they take the whole country down California's downward path.
Thanks for posting your letter to Senator Cotton, Kent, and I understand your basis for thinking some particulars of the FIRST STEP Act are flawed. I surmise you think FIRST STEP looks too much like what California is doing, which you see as very problematic.
Against that backdrop, do you have a view on what state system Congress should look to as the best model for prison reform? I surmise from those "in the know" that the feds do a lousy job with prison programming and re-entry services, and so I sincerely believe some reform is needed. Even Senator Cotton seems to agree on this front. So what model of reform would you advocate for?
You close your letter saying a the "federal prisoner population includes a great many hardened criminals." But USSC data shows that "almost one-third of [federal incarcerated] offenders (31.5%) have little or no prior criminal history (i.e., are assigned to Criminal History Category I)." https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick-Facts_BOP_March2016.pdf My sense is that the risk assessment elements of FIRST STEP are trying to direct rehabilitation resources and reductions toward that population. Do you think that is at least a reasonable goal, even if you think some of the details here are problematic?
Are you asking if 68.5% does not equal a "great many"? Sure as hell is to me.
Well,
"almost one-third" is the dominant figure, rather than 68.5%,
to a biased advocate. It becomes a huge proportion to such a mind.
Then again, if minority status exculpates one from otherwise
obvious responsibility, the activist can point to the paucity of the figure
as significant, e.g., [actual quote]:
"I, an ethnic minority woman, cannot be racist or sexist towards white men".
~http://www.bbc.co.uk/newsbeat/article/32727016/
i-cant-be-racist-if-im-from-an-ethnic-minority-discuss
As the 7:38 commenter said, if one-third don't then two-thirds do, and that is a great many.
More specifically, if the drafters of this bill wanted to direct it to first offenders, it would have been very simple to do so by including criminal history in the definition of "ineligible prisoners" in §3632(d)(4)(D). They did not. Instead, they listed a host of discrete present convictions that are disqualifying in xlviii clauses (including such oddities as "[a]ny section of the Export Administration Act"), only three of which have any element at all relating to criminal history. Criminal history itself, regardless of how extensive or violent, is not disqualifying.
The only goal I see in the drafting of this measure to dump as many criminals back on the street as possible without regard to how many innocent people are victimized as a result.
It is likely true that many well-intentioned people were snookered by the "let 'em all out" crowd and signed off on it without really understanding what is it.
This bill needs to go in the garbage. People genuinely interested in promoting rehabilitation with minimal danger to public safety need to start over with a fresh bill, not letting the people who drafted this one anywhere near it.
My sense of the FIRST STEP bill is that is seeks to use risk assessment tools to best allocate prison rehab resources: criminal history in such tools are an important but not exclusive factor because some “first offenders” may be high risk (esp if young), while some folks with priors (esp older ones) may score low risk. Are you against the use of risk assessment tools, or do you assert that nobody is really low risk in federal prisons?
Note that, despite the statement by other commenters, I do not dispute that there are many hardened criminals in federal prison. The question is whether it is worth exploring means to make them and others less hardened. I asked you to suggest state models you like better than those incorporated into FIRST STEP. Can you? Your criticism of the current proposal would be clearer if you could point to another model of prison reform that you think sounder. What are the sound reform models you think Congress should be looking toward?
The key element of an acceptable program of time credits for rehabilitation is explained in my letter on pages 3-4:
I have not studied other states' programs and do not know if there is one that can be considered a model.
One problem I would have basing time credits on programming effectiveness is that how well a program works is more a product of the individual inmates involved than the quality of the program.
If an inmate is motivated in the program, he is more likely to be motivated on the outside to stay out. Many, many inmates do the bare minimum in their programs, just enough to avoid a misbehavior report. I have no actual data as it likely does not exist, but I am 100% sure that the former group has a lower rate of recidivism than the latter group.
Politicians have been talking about "prison reform" probably since the "Auburn system", if not all the way back to 1790 and the Walnut Street Jail in Philly. They all ignore the basic sociology behind the problem. Bad habits learned early and practiced over a long time will almost always trump good habits learned in your late teens and 20's over a relatively short time. Contrary to Doug's beliefs, the prison system generally is not turning good kids bad. They came in broken and are almost impossible to fix.
Tarls, you have put your finger on the primary issue of methodological validity. A measurement of program effectiveness that does not control for the in-going motivation of inmates is not valid. That is why it is so important that programs be measured correctly. If not, we are wasting money on programs that do nothing and letting people out early for participating in programs that really have no effect on likelihood of recidivism.
Of course, if your real goal was just to let more inmates out and the whole rehabilitation pitch was nothing but snake oil to hoodwink the gullible, that would be perfectly okay.
And if that is the strategy, the way to implement it would be to draft legislation that talks about "evidenced-based" programs but does not actually require valid confirmation of effectiveness.
I actually do not significantly disagree some of your concerns, Tarls and Kent, but I fear complete nihilism about the prospects for rehabilitation is misguided and dangerous. Especially in the federal system, I doubt prison is itself turning lots of "good kids bad." (There are relatively few "kids" in the federal system.) But a lack of any rehabilitative programming is likely to turn bad kids worse. And believing these kids are "broken and are almost impossible to fix" makes it that much easier for the prison/reentry system to avoid any responsibility for making everyone worse. Just look at how Cotton uses awful recidivism rates from state offenders as an excuse not to seek reforms to the (much different) federal system.
There are certainly some advocates of federal reform that just want to see a smaller federal prison population by any and every means (though this same group surely likes the prospect of a whole Trumpian wing of club-fed). But there are many who are sincerely, and I think rightly, committed to having the federal prison system work better. If you cannot give any examples of what "work better" really looks like --- either because you think nothing works or the risk of trying something that might work is to high --- then those folks more optimistic that we can do better are sure to be swept up in broader campaigns to do broader reforms. That is why I keep urging and asking for a better model. I sense lots of folks on both sides of the aisle are eager to do something, and FIRST STEP actually seems to them to be the most modest "something" being discussed.
Once more, with feeling, my position is: "Time credits should be limited to participation in programs that have been proved by methodologically valid, convincing evidence to produce a substantial reduction in recidivism." I do not see how that could conceivably be called "complete nihilism."
I called for more and better research on what works ten years ago at the USSC symposium. If the dearth of quality research remains so severe that there is a drought of proven programs, then it is high time to get cracking on the research, not say, in effect, "we don't need no stinking methodology."
The FIRST STEP Act is about as "modest" as Stormy Daniels.
Considering that I likely have done more to rehabilitate inmates than any person here, any accusation of “complete nihilism” seems misguided at best, but more likely a slander.
As Kent correctly implies, the FIRST STEP Act has a flawed methodology based on a flawed view of prison programming. The willingness of many inmates to sleepwalk through a program doing the least work possible should not trigger sentencing reduction. The supporters of the act are requesting the change, thus it is up to them/you to come up with a “better model” and give evidence it will work. Supporters have failed or chosen to not do the work, thus it should not pass and can only be seen as a get out of jail free card.
Here is a typical scenario when I worked in NYSDOCS. Inmate refuses meaningful programs almost his entire sentence, instead taking porter or cleaning jobs. Three months before a parole or other sentence reduction date, he asks to be put into school and vocational classes, does little, then goes to the board and brags about how he is trying to better himself.
Sincere apologies for suggesting anyone was embracing "complete nihilism," and I now appreciate that you two are asserting merely that the FIRST STEP Act goes too far and is not based on solid research. My understanding is that much of the FIRST STEP model is based on perceived successful programs/structures from (mostly red) states, and that was the primary basis for asking about what existing model of reform you could embrace.
Ultimately, the national incarceration rate, recidivism rates and my own experiences in cases involving various non-violent offenders in the federal system all drive my belief that a lot can and should be improved in our nation's criminal justice systems. That basic reform-oriented view makes me willing to explore changes that aspire to be built on successful state reforms, and so FIRST STEP seems worth trying (especially because, compared to serious proposals I have seen to seek to get the federal prison population cut in half, FIRST STEP is indeed modest).
‘Non-violent.” Probably the biggest scam in criminal justice discussions, made to obscure the real societal damage done by the criminal.
Big time drug kingpins are often considered “non-violent,” even though their minions are out there being brutally violent in their name.
The word is also often used to describe the tens of thousands nationally who committed violence but accepted a plea deal down to a non-violent crime.