Sunday, July 15, 2018

FIRST-STEP opposition shows why partisanship is the bane of criminal-justice reform

Just Liberty this week will launch a new action alert asking Texas Sen. Ted Cruz to support the federal FIRST-STEP Act, which regrettably puts us at odds with some national reform groups like the ACLU and the Leadership Conference (now headed by our old pal Vanita Gupta, lately of Obama-Administration fame).

Other #cjreformers like Families Against Mandatory Minimums, the #Cut50 campaign, and Right on Crime support the measure.

Decision Time
As Just Liberty's Policy Director, I had to make my own assessment. And from a #cjreform perspective, it's impossible not to conclude that FAMM and #Cut50 are right on this one and ACLU and the Leadership Conference are letting partisanship impede doing what's best for prisoners.

The main criticism of the FIRST-STEP Act is that it doesn't go far enough, failing to embrace sentencing reform measures which would more fundamentally confront federal mass incarceration trends. Here's how a San Antonio Express-News editorial described those complaints:
Progressives are sharply divided on the measure, mostly because of what it doesn’t do. The bill — sponsored by Reps. Hakeem Jeffries, D-N.Y., and Doug Collins, R-Ga., and strongly pushed by President Trump’s son-in-law and adviser, Jared Kushner — does nothing to address the main problem, which is that this nation sends far too many people to prison and keeps them locked up far too long. 
Truly meaningful change would involve sentencing reform, for which there is some bipartisan support in Congress — but not enough to get such legislation through both chambers. It is hard to imagine that Trump, who tries so hard to project a tougher-than-thou image, would sign a bill significantly reducing sentences. And Attorney General Jeff Sessions, who believes in throwing away the key, would have a conniption fit. 
The First Step Act ignores the “front end” of the problem — sentencing — and focuses exclusively on the “back end.” It would provide $50 million a year for five years in new funding for education and rehabilitation programs in federal prisons, encourage inmates to participate in those programs by giving them credits for early release, and allow some prisoners to serve the balance of their sentences in halfway houses or home confinement.
Good > Perfect
So our liberal friends don't oppose the things in the bill so much as they think OTHER things should be in there. In other words, they're allowing the Perfect to become the enemy of the Good. Grits supports sentencing reform, too, and I wish it were included in the bill passed by the House. Those national groups are not wrong to insist that it's needed.

But this is not a sentencing reform bill. OTOH, on the issues it does address, most of them are modest improvements over the status quo.

In Texas, that's always been my threshold for whether to embrace reform. "Is it an improvement over current law?" If yes, don't oppose it unless it harms somebody. By that standard, supporting the FIRST-STEP Act is a no-brainer.

Indeed, thanks to changes in how good time is calculated, there are 4,000 people who would be released immediately if the law is enacted. Without the bill, they stay locked up.

That, to me, is where Grits parts ways with Gupta and Company: I'm not willing to tell an incarcerated person - much less 4,000 of them - that they should spend more time in prison because IMO some bill doesn't go far enough. These liberal critics aren't the ones doing the extra time!

How incrementalism works
Partisans ensconced in D.C. gridlock fail to understand some of the lessons on bipartisanship we've of necessity learned in Texas: Getting folks from both parties to support a modest reform today can help persuade legislators to do more later once they see the public reaction and find that there's no backlash, or at least that it's survivable.

For example, in Texas, former House Corrections Committee Chairman Ray Allen passed legislation in 2003 mandating probation on the first offense for low-level drug possession cases, diverting a few thousand people from Texas prisons. He was challenged in 2004, called "soft on crime" by his chief political opponent, but won anyway. After that, and really, because of that, legislators felt comfortable embracing bolder decarceration reforms in 2005 (vetoed), paving the way to pass the ambitious 2007 probation reforms championed by Sen. John Whitmire and Rep. Jerry Madden. Members needed Chairman Allen's electoral example to see that, if they stuck their necks out, they wouldn't get them cut off! (For more background, David Dagan and Steven Teles described these episodes in their book, Prison Break.)

While there's still far to go, over time this approach has made a significant dent in mass incarceration in Texas, symbolized most prominently by the closure of eight prison units, including four closed during the most recent legislative session.

Similarly, if Congress were to pass the FIRST-STEP Act and Republican legislators were to discover in November that they received credit for its passage instead of blame, that will make them more likely to vote for sentencing reform in the future. That truly would be a "first step." Big ships turn slowly, and the slowest to turn of all vessels are ships of state.

It took decades to build America's carceral state, there aren't going to be any quick, one-bill fixes. And future fixes become less likely if liberals blow up efforts at #cjreform bipartisanship.

Why multi-issue groups are the bane of #cjreform
But maybe the real issue is Democratic partisans who don't want Republicans to get credit for something good while they see those same Republicans on the opposite side on other debates that they care about. To that extent, splits on the left over the FIRST-STEP Act point to another problem that's plagued justice reformers since your correspondent got into the game back in the 1990s: Multi-issue groups will always sell out a #cjreform agenda when it conflicts with other liberal goals, in particular on pro-choice, gay-rights, environmental issues, and increasingly in the Trump era, immigration.

Many Democrats oppose the FIRST-STEP Act simply because they don't want to give President Trump " a win." To me, that's flat-out unpatriotic, no less so than all the Republicans in Congress who considered it their mission in life to see President Obama fail. (It may sound corny, but I want America to succeed, even under President Trump.)

It's also politically inept. Politics is the art of the possible, and while Republicans control Congress and the presidency, this is what's possible. In poker terms, take the chips on the table and live to play another hand.

If Democrats want US policy to go further, win some damn elections. But if this bill was proposed under a Democratic administration and Congress, these same groups would all support it. It's hypocritical and counter-productive to oppose it now.

RELATED: Washington Examiner, "Time for bipartisan deal making on criminal justice reform."


Gadfly said...

From what I've read, besides any possible partisanship by the ACLU, the measure, as now stands, is not adequately funded.

I see one example in the link:

"The FIRST STEP Act authorizes $250 million in funding over 5 years for rehabilitative
programming and requires the BOP to expand programming within 3 years."

"Authorizes" is not the same as "requires."

Gritsforbreakfast said...

I don't think that's right. Money "authorized" by Congress is money approved for programming.

Wolf said...

Your characterization of this issue as a partisan battle.....liberals versus conservatives does not reflect the facts. Senator Charles Grassley is no liberal and an advocate of sentencing reform via the Sentencing Reform and Corrections Act. Real bi-partisan reform would be combining First Step and SRCA. Both of these are modest proposals that focus mostly on non-violent, low level offenders. So it is certainly not the case of the perfect being an enemy of the good. That's just a smokescreen for addiction to incremental change. The widespread lack of equal justice under law and the dismal record of prisons living up to their mission calls for structural reform. As you say, politicians are risk averse when it come to criminal justice reform. But with the millions of people impacted surely it is possible to think big and advocate for needed structural change, while supporting whatever guides us in the right direction.

Gritsforbreakfast said...

You're misstating my position, Wolf, so your comments are irrelevant.

I did not characterize this issue as a "partisan battle." In fact, I think the issues in the FIRST STEP bill are all nonpartisan. Rather, I characterized the motives of multi-issue civil-rights groups opposing the FIRST-STEP Act as partisan. They're not against the bill because anything in it is bad, they're against it because they're against Trump.

And yes, opposing the House bill is PRECISELY letting the perfect become the enemy of the good. You, Gupta, ACLU, etc. would rather let 4,000 people sit in jail longer so you can stand on your principles. To me, that's unconscionable.

I'm all for "thinking big," but the "big" thing you wanted couldn't and didn't pass the House. Opposing the pieces that did because you want more is petulant childishness.

Gadfly said...

Here we go, with, as of May, at least, complaints about backlogs already in the system, and ELIMINATION of federal-level community supervision, and no funding for recidivism reduction programming. Back to you, Grits:

“Limited space already reduces the amount of time individuals can spend in halfway houses. Recent closures of residential re-entry centers have further exacerbated the problem, making it unlikely that people will be able to use all the “time” they earn under the bill,” The Leadership Conference on Civil and Human Rights stated in a news release.

“For example, the residential drug abuse program provides a one-year sentence reduction to those who complete the program. However, RDAP currently faces a 5,000-person wait list due to limited resources,” The Leadership Conference stated. “Additionally, home confinement is rarely used by the Bureau of Prisons, and the bill eliminates the option of community supervision altogether. Finally, the bill does not include any funding for the recidivism reduction programming it seeks to expand, already grossly underfunded.”

Wolf said...

Dismissing my comments as irrelevant because you see me as misstating your position is throwing out the baby with the bathwater. I could care less whether legislation has a republican or democrat label. What it should do is reflect steps in the right direction. First Step is one such small step, and I support that. At the same time, when a bill passes the House, it's not just the role of the Senate to rubber stamp it. Senators have a responsibility to offer their input for potential inclusion. In theory the result will be a bill that includes input from both chambers, and both sides of the aisle. Something good can be made need to identify "perfect" as the enemy.

Gritsforbreakfast said...

@Gadfly, you're arguing against the status quo, not the bill!

@Wolf, when you misstate my position I feel no need to respond to the specifics. I have not been contradicted.

You say we both support steps in the right direction. But you're throwing in your lot with people who OPPOSE steps in the right direction unless even more steps are taken.

I'd be glad for the senate to go further, but that won't make me join hands with ideologues who OPPOSE the current version if it remains un-amended. When a bill would immediately release 4,000 people, liberals living comfortably in the free world IMO are in a morally dubious position when they say "You should stay locked up longer so I can feel good about being zealous, opposing Trump, etc.." That to me is beyond the pale.

Gadfly said...

Grits .... actually, I was looking at another bill which had been in the pipelines first, HR 3356, the Prison Reform and Redemption Act, which didn't get out of committee before First Step was introduced, then passed. That said, many of the same groups that oppose it also/still oppose First Step, per the Leadership Conference.

And, from what I read there, there's still a fair amount to oppose.

1. Having federal prisons work more "for privatization of certain public functions"
2. The bill not addressing that the next budget calls for a cut in the BOP budget
3. Questions about the risk assessment algorithm and related.
4. And, yes, no sentencing reform.

Other complaints seem to be unchanged, or not much changed, from one bill to another, such as the Trump Admin cutting contracts with halfway houses, and the categories of excluded inmates. Those exclusionary categories would include not only murderers, etc., but Reality Winner, and Edward Snowden, should Jeff Sessions ever lay hands on him and get him convicted. Another exclusion would be for people convicted in the War on Terra, who are often, of course, semi-entrapped by the FBI.

So, while First Step may be a step ahead of the Prison Reform and Redemption Act, is it enough to vote yes knowing that sentencing reform will be ignored for the rest of this administration and beyond?

Sorry, but I'd like to see the Senate make it better. And, are the 100+ groups that agree with the Leadership Conference all "partisans"?

Gadfly said...

And, per my first comment about money "authorized" in the bill vs money "budgeted" by Congress in the normal budget process? Vox agrees with me:

"(Although any allocation of funds will need to be approved through Congress’s formal appropriations process in the future.)"

Vox also notes what the Leadership Conf. notes. Algorithms can get racial or other bias cooked in. Algorithms already used at various places in the criminal justice system already face such concerns and complaints.

Gritsforbreakfast said...

@Gadfly, you ask, "while First Step may be a step ahead of the Prison Reform and Redemption Act, is it enough to vote yes knowing that sentencing reform will be ignored for the rest of this administration and beyond?"

Yes, if it's an improvement over the status quo, that's enough.

Sentencing reform may not happen if the FIRST-STEP act passes, but there's also ZERO evidence to support the idea that it will pass if FIRST-STEP is killed.

You also ask: "are the 100+ groups that agree with the Leadership Conference all 'partisans'?" Do you see any conservative groups on the list?

Re: Algorithms, this is a much bigger debate. They're taking one side of an issue that has by NO means been resolved and ignoring the counterarguments. I consider their inchoate stance on that, as on the bill as the whole, allowing the perfect to be the enemy of the good. See here for a discussion.