ABSTRACT
The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.
The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence. Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking. This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.
A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities. Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission. Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform.
Finally, federal judges can be trusted with release decisions. Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision. Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.
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The federal sentencing guidelines articulates the primary goals of the sentencing schemes, and has been in place for over four decades. Most states have the same or similar goals in their sentencing schemes. Specifically, these goals are: (1) Deterrence, (2) proportional retribution/punishment, (3)incapacitation (i.e., removal of the person from society for a reasonable period of time so that further crimes are prevented), and (4) rehabilitation.
The “tough on crime” crowd, who still controls the criminal justice system (from judges down to the correctional officer and everyone in between) largely focus upon the first three of these goals. The fourth, rehabilitation, has traditionally been relegated to the basement as the disfavored step-child, and fed scraps.
When confronted, these folks typically give lip-service to their obligation to provide sufficient resources to rehabilitation programming. But it is nothing more than that – lip-service. Even when Congress has directed them to increase programming that would reduce recidivism, their bias prevents them from fully complying in either spirit or in letter.
Do we really expect the culture of the “tough on crime” warriors to meaningfully change just because Congress says they should do so? And even though social science, logic, common sense and fiscal responsibility cleary has demonstrated that their methods are flawed, they still drag their heels.
Until we “change the guard”, I will remain pessimistic that we will ever see any meaningful change in our criminal justice system. But thanks Congress, we do appreciate the sentiment.