Congress Is Poised for a Major Step on Sentencing Reform

New legislation would address several laws responsible for increasing racial disparities in our prison system

November 14, 2018

A bipartisan group of senators is moving closer to the most substantial rewrite of criminal justice legislation in a generation. The senators reached a compromise on Monday that clears the way for Congress to pass a bill including both prison reform and sentencing reductions. 

Under the compromise, the FIRST STEP Act — which the Brennan Center initially opposed because it would not have reduced mass incarceration — will be amended to include provisions that will shorten some unnecessarily long prison sentences. President Trump announced his support for the bipartisan bill earlier today. Senate Majority Leader Mitch McConnell has signaled he may call a vote before the end of the year — provided the bill garners the support of more than 60 senators. But some hurdles remain

Brennan Center president Michael Waldman tweeted:

Criminal justice reform starts with sentencing reform 

Federal mandatory minimum sentences contributed to a surge of unnecessarily harsh prison sentences — especially for those convicted of nonviolent crimes — and fueled the rise of mass incarceration in the United States. Current sentencing laws also have a disproportionate impact on people of color and on low-income communities. Consequently, sentencing reform must be the starting point of any serious legislation for criminal justice reform.  

Earlier drafts of the FIRST STEP Act did nothing to reform sentencing laws. But Monday’s compromise will amend the bill to include several key sentencing reform provisions. If amended, the bill would reduce mandatory minimum sentences for nonviolent drug offenses. It would give judges more discretion to deviate from mandatory minimums when sentencing nonviolent drug offenders. Those provisions alone will reduce the sentences of more than 2,000 people every year in perpetuity. But the amended FIRST STEP Act would also allow the retroactive application of the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine offenses. 

An additional 3,000 would be eligible for sentence reductions under that change. 

If amended, the FIRST STEP Act will benefit most federal prisoners 

The FIRST STEP Act was originally written as a more modest bill designed to improve conditions for current prisoners. In its initial form, it would have required federal prisons to offer programs to reduce recidivism; banned the shackling of pregnant women; and expanded the cap on “good time credit” — or small sentence reductions based on good behavior — from around 47 to 54 days per year. 

That “good time” amendment will benefit as many 85 percent of federal prisoners. Combined with sentencing reform, the bill “will change laws that create some of the most egregious racial disparities in the federal prison system,” said Ames Grawert, senior counsel in the Justice program at the Brennan Center. 

Even if sentencing reform is added, the FIRST STEP Act remains, well, just a first step

Passing the amended FIRST STEP Act would mark a good start for sentencing and prison reform legislation. It would represent a rare bipartisan milestone for a Congress that just entered lame-duck session. And it reflects widespread public support for criminal justice reform across the political spectrum. 

While it is a good start, even if amended and enacted, the FIRST STEP Act will leave significant mandatory minimum sentences in place. In addition, two of the key sentencing provisions in the act are not retroactive, which stunts their overall impact. 

Despite those limitations, the FIRST STEP Act compromise shows that there is, in fact, a way to work across the aisle toward meaningful criminal justice reform. If the improved bill gets signed into law, it will be a victory worth celebrating. But we should remember that there’s a lot of work left to do. 

(Image: Darrin Klimek/Getty)