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Criminal Justice Reform: A Possible Path for Unity?

2021-04-21T09:58:00-05:00

With a new administration in the White House committed to building greater political unity, criminal justice reform may serve as a source of common ground for Washington policymakers.

As 2018’s First Step Act demonstrated, criminal justice reform can bring together advocates from across the political spectrum and create the kind of alliances needed to advance solutions, no matter how imperfect or incremental.

Sometimes, these alliances can seem surprising and strange, as when Robert Kraft, the conservative businessman and owner of the New England Patriots, joined the Reform Alliance, an organization started by rapper-songwriter Meek Mill. The organization has championed criminal justice reform at the state level through legislation such as California’s AB 1950, which shortens some probation sentences, and Louisiana’s HB77, which allows remote alternatives such as video conferencing for parolee meetings.

There are clear signs that the politics around criminal justice is changing since the tough-on-crime era of the 1980s and 90s. The policies of those years led to an explosive increase in the prison population during both Democrat and Republican presidencies.

But reform efforts are gaining traction. The First Step Act was the first significant piece of federal criminal justice reform legislation in nearly a decade. And as noted, some state legislatures have recently adopted reform measures of their own. In addition, local voters around the country are electing reform-minded prosecutors to bring change to the justice system in their communities.

Such local efforts are not new. Grassroots and community-based organizations have historically responded to the inequities and shortcomings of the criminal justice system through responsive solutions that range from community bail funds to advocacy groups acting as whistleblowers for inhumane and unsafe prison conditions.

The Biden administration has listed federal legislative action on criminal justice reform as one of its priorities. Despite the nation’s deep political polarization, there may be enough common ground to take a second and even third step at the federal level.

Prison population fell under Obama and Trump

Building on the First Step Act

According to the US Sentencing Commission, in the first year under First Step Act implementation, the number of enhanced penalties imposed on repeat offenders decreased by 15%; close to 2,387 prisoners received sentence reductions averaging almost 6 years; and 145 prisoners were granted compassionate release – five times more than in 2018.

Yet the passage of First Step was, as its title suggests, only a starting point for criminal justice reform and came with some limitations. The law applies primarily to the federal level, and federal prisoners account for only about 10% of the total prison population, leaving much room for further reform.

Leading Features of the First Step Act

The First Step Act includes 20 pages of reforms that target goals in 6 specific areas: reduced recidivism, incentives to improve, greater guidance on where prisoners are confined, a range of correctional reforms, sentencing reforms, and oversight of the law and assessment of its impacts.

Several key features include

  • Shortens mandatory minimum sentences for some drug traffickers with prior drug convictions
  • Retroactively applies the Fair Sentencing Act to reduce the sentencing disparity between crack cocaine and powder cocaine,
  • Allows eligible inmates to earn up to 54 days of “good time” credits for every year of their imposed sentence rather than every year of their sentence served, meaning that a person with a 10 year sentence could potentially reduce his sentence by almost 1.5 years
  • Encourages placement of prisoners closer to their families
  • Expands prisoner employment and requires the Bureau of Prisons to create a fund from sale of prisoner-made products that is payable to prisoners upon their release in order to ease their transition back into society

Implementation of the bill has also been slow and uneven, with some federal inmates completing requirements to earn credits for early release but not receiving them. Funding has also been a concern. Although the law calls for an annual budget of $75 million for five years, Congress’s failure to appropriate funds led to the Department of Justice ultimately redirecting funds from existing programs into the First Step Act in 2019. The following year, a proposed budget from the Trump administration for FY 2020 allocated only $14 million to First Step Act implementation, prompting concern from advocacy groups that led to a budgetary increase.

To advance further reforms at the federal level, the Biden administration and Congress can also look to states for precedent in criminal justice reform legislation. Louisiana, for example, began a process in 2017 aimed at shedding its status as the state with the highest incarceration rates in the country. From 2017 through 2020, the state legislature passed 24 criminal justice reform bills: 10 bills in 2017 aimed to reduce the state prison population by 10% over a decade; 2 bills in 2019 that targeted greater transparency in police activities and lowered costs to taxpayers through reduction of long and unwarranted sentences; and 12 more in 2020 that focused largely on making it easier for former prisoners to re-integrate into their communities and avoid repeat offenses.

Reform-Minded Prosecutors Address Inequality

In the November 2020 election cycle, the two largest prosecutor offices in the country – in Los Angeles and Illinois – held elections that were won by LA District Attorney George Gascón and Cook County State’s Attorney Kim Foxx, respectively. Foxx won re-election for her second term. Dallas County DA John Creuzot and Travis County DA José Garza in Texas, Orange-Osceola State’s Attorney Monique Worrell in Florida, and Orleans Parish DA Jason Williams in Louisiana have also been recently elected.

These prosecutors ran on a platform in which they advocated for the use of the prosecutor’s office to implement criminal justice reform aimed at reducing the prison population, and particularly, the incarceration of marginalized people of color.

While the kinds of policies implemented by reform-minded prosecutors vary, their platforms typically emphasize fewer prosecutions of low-level drug-related crimes and offenses and instead promote diversion and treatment programs over punitive measures. They also place a greater emphasis on police accountability in cases of violence, civilian killings, and lesser criminal offenses; convictions of arrested officers are uncommon. Philadelphia DA Larry Krasner and Cook County’s Kim Foxx, for example, have implemented police accountability measures including arrest investigations and direct police misconduct reporting. In Los Angeles, DA George Gascón announced his intention to reopen four cases of civilian killings.

Such reform efforts have drawn the ire of police departments and police unions and have been met with active efforts to block them through court rulings. In Los Angeles, a judge barred Gascón from ending sentencing enhancements in criminal cases. In Florida, after State’s Attorney Aramis Ayala declared she would not seek any death sentences in her circuit, then-Governor Rick Scott (R) began transferring potential capital cases to a neighboring prosecutor and state legislators eliminated $1.3 million from her budget. Ayala sued to stop the transfer of cases, but the State Supreme Court ruled against her.

Despite the staunch opposition, reform-minded prosecutors have been able to show some results. In Philadelphia, the local prison population has seen a 43% decrease following reform efforts of DA Larry Krasner and the MacArthur Foundation. State’s Attorney Kim Foxx implemented s policy to only prosecute felony shoplifting of more than $1,000, leading to a decline from 300 to 70 charges per month, approximately.

Looking ahead, how reform policies play out and whether these prosecutors continue to be re-elected will indicate the long-term potential of this path to significant change.

Momentum for Police Reform and Restructuring

The Black Lives Matter movement, founded in 2013 by three activists after George Zimmerman was acquitted of killing 17-year-old Trayvon Martin, brought renewed national attention to the violence and inequities faced by Black communities, especially in regards to policing. Since then, highly visible and recurring instances of police brutality have put the police system at the center of national discussions about criminal justice.

Calls to “defund the police” took center stage in the national debate over police reform following the deaths of Ahmaud Arbery, George Floyd, Breonna Taylor, and others. While the heads of police unions from Los Angeles to Milwaukee to Charlotte have defensively warned against slashing budgets, the US Conference of Mayors is seeking to strike a more balanced middle ground.

In a report published in August 2020, the mayors pushed back against the idea of defunding the police and instead made the case for improved training and relieving police officers of duties better suited to social service providers and mental health experts. Importantly, the report acknowledged the racism that persists in police work and recognized that the overt brutality too frequently witnessed on social media is, in part, the product of political support for a “law enforcement first and only” approach to public safety.

States and local precincts have long been laboratories for police reform, and both recent and long-term efforts are now being considered as models to adopt and adapt. In 2016, the Newark Police Department, which has a history of strained relations between the police and local community, was ordered by the Justice Department to undergo a major overhaul after an investigation beginning in 2011 confirmed widespread police brutality and racism within the department. Mayor Ras Baraka (D-Newark) agreed to introduce sweeping changes to the department, such as anti-bias and de-escalation training, clearer stances against problem officers, increased use-of-force investigations, and submitting to federal oversight. While this reform is ongoing, results have so far offered insight into successful approaches and pitfalls.

Programs that divert police responses away from nonviolent crisis calls have also gained public traction. In Eugene, Oregon, a program called Crisis Assistance Helping Out on the Streets (CAHOOTS) has for 30 years replaced a police response to mental-health and drug-related 911 calls with unarmed outreach workers and medics trained in crisis intervention and de-escalation. Funded partly by a community health clinic and by the Eugene Police Department, the program says it saves the city about $8.5 million in public health costs every year, in addition to $14 million in savings for ambulance trips. Programs modeled after CAHOOTS have been implemented recently in other cities, including Denver, New York City, and Los Angeles.

Despite these new programs, there is often little agreement among mistrustful police forces, local communities, and policymakers who want to respond to the very visible atrocities committed by the police, signaling a need for solutions that address the root of crime and risks  to public safety. As some cities have set targets for reducing police budgets, they have also redirected or reinforced funds into social programs, exemplifying what Denver Police Chief Paul Pazen told Bloomberg CityLab: “This is not an ‘or’. This is not, ‘fund the police department or fund mental health’. It is an ‘and’.”

Local Bail Funds Offer Direct Action

Cash bail, which is set by a judge and must be paid to avoid pre-trial detention, has long been disputed by activist organizations as a system that criminalizes poverty and unjustly detains people in jail for weeks, months, or sometimes even years before their trial date due to their inability to pay. Local bail funds offer a short-term solution by paying bail for those who cannot afford it; the long-term goal is to limit the need for pre-trial detention and so eliminate the need for bail payments except for those accused of the most serious offenses.

Last summer, after the graphic death of George Floyd under the knee of a Minneapolis police officer, individual cash donations to community bail funds swelled. In just five days, the Minneapolis Freedom Fund had received $20 million dollars; bail funds in other major cities also received donations in the millions. The influx of cash has not only allowed many bail funds to operate beyond a shoestring budget, it has increased public awareness of the shortcomings of cash bail and efforts to end the bail system. In 2021, Illinois became the first state to end cash bail as part of a sweeping criminal justice reform bill.

Bail funds also address broader incarceration issues. Many community bail funds, such as the Minnesota Freedom Fund and the Brooklyn Community Bail Fund, pay immigration bonds to release individuals from immigration detention. The Brooklyn Community Bail Fund also operates a collaborative program called Court Watch NYC that trains volunteers to monitor court proceedings and collect data to ensure proceedings are not discriminatory or unnecessarily punitive.

It remains to be seen whether the alliances behind the First Step Act and reforms at the state and local levels have formed a strong enough foundation for the Biden administration to advance further bipartisan criminal justice reform. One thing is certain, though: there is no shortage of potential reforms and support for them.

Problem Addressed: Criminal Justice, Racial Inequality, Income & Wealth Inequality

Written by Anna Luo

Published on March 16, 2021

Feature image: Photo by RODNAE Productions from Pexels

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