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Analysis

Trump’s Afterthought on Pardons Shows Why Real Sentencing Reform is Needed

President Trump acknowledged that those who could benefit from a presidential pardon “have sentences that aren’t fair.” If he really believes as much, he should support efforts to reduce mandatory minimums that are unnecessarily incarcerating thousands of Americans.

June 12, 2018

In typical fash­ion, Pres­id­ent Trump bumbled his way into a good point before taking off for his unne­ces­sary show­down with the coun­try’s longest-stand­ing allies on Friday. In the wake of the Kardashian-inspired pardon of Alice Marie John­son, he mentioned poten­tially pardon­ing Muhammad Ali (never­mind the details: Ali’s convic­tion for refus­ing milit­ary service in Viet­nam was over­turned by the Supreme Court in 1971) and asked NFL play­ers concerned with the coun­try’s crim­inal justice system to recom­mend “friends or people they know about” for pardons.  

But in a surpris­ingly truth­ful after­thought, the pres­id­ent acknow­ledged that those who could bene­fit from a pres­id­en­tial pardon “have sentences that aren’t fair.” On that, he’s right on. And if he really believes as much, he should support efforts to reduce mandat­ory minim­ums that are unne­ces­sar­ily incar­cer­at­ing thou­sands of Amer­ic­ans.

Indeed, over the past three decades, Congress has passed more than a hundred new laws impos­ing mandat­ory minimum sentences — which sap discre­tion from judges and juries and instead slap arbit­rary penal­ties on federal crimes. That’s led to a seven-fold increase in the federal prison popu­la­tion. Over the same period, federal prison spend­ing has ballooned more than 600 percent.

Despite the grow­ing bipar­tisan consensus to reduce or elim­in­ate mandat­ory minim­ums (which may have spared Kim Kardashian the Oval Office visit), the pres­id­ent and his extrem­ist Attor­ney General Jeff Sessions have unveiled a tepid prison reform bill, called the FIRST STEP Act, that sailed through the House earlier this spring.

The FIRST STEP Act imple­ments some basic reforms (like train­ing programs and banning the shack­ling of preg­nant women) but does virtu­ally noth­ing to mater­i­ally lessen lengthy sentences that make our federal justice system so funda­ment­ally unfair. That’s part of the reason that Sen. Chuck Grass­ley, the power­ful Repub­lican chair­man of the Senate Judi­ciary Commit­tee, has publicly rebuked the piece­meal Trump bill and is now push­ing for the Senate to attach substant­ive senten­cing reform to any new legis­la­tion.

Some­how, one of the cham­ber’s most conser­vat­ive members has become the last best hope for crim­inal justice reformers.

Grass­ley in Febru­ary got his commit­tee to advance the Senten­cing Reform and Correc­tions Act, a bill that would begin repair­ing the broken federal crim­inal justice system by redu­cing mandat­ory minimum sentences, at least for nonvi­ol­ent offend­ers. The result: some 2,500 people each year would receive a sentence reduc­tion between 22 and 50 percent, and more than 6,000 drug offend­ers would be imme­di­ately eligible for a sentence reduc­tion of nearly 30 percent.

In short, the people harmed most by our unfair federal justice system would see drastic reduc­tions in their sentences. And over the long term, the oblit­er­a­tion of mandat­ory minim­ums would keep low-level, nonvi­ol­ent offend­ers out of costly pris­ons and allow us to redir­ect federal funds to do things like improve community poli­cing and provide treat­ment for those with substance use disorders.

The real­ity is that at least four in every ten federal pris­on­ers are unne­ces­sar­ily incar­cer­ated. And our data show that over the decades, our coun­try’s uncon­scion­ably high incar­cer­a­tion rate has had virtu­ally zero impact on crime over­all. Ware­hous­ing of humans isn’t just a grave moral wrong – it’s a costly mistake that has destroyed communit­ies and econom­ies across the coun­try.

What’s more, unlike the FIRST STEP bill, Grass­ley’s Senten­cing Reform and Correc­tions Act is the product of actual bipar­tisan agree­ment (not to mention agree­ment among the Koch broth­ers, law enforce­ment, and the civil rights community…not every day you get all those folks on the same page). This strong bipar­tisan back­ing for senten­cing reform is what makes the silence or support for the more modest reforms laid out in Trump’s prison reform bill by many Demo­crats so disheart­en­ing. 

These Demo­crats may think it’s time to take a small win and try to build on it. After all, the White House bill is called the FIRST STEP Act for a reason. Our fear is that it will also be the last step. To be sure, the bill in its current form will do a limited amount of good. But it could also derail broader reform, allow­ing the bill’s proponents to congrat­u­late them­selves on a job unfin­ished.

Congress should pass a bill that will address the prob­lem of unfair sentences—whether that’s the Senten­cing Reform and Correc­tions Act or a combin­a­tion of that bill and the reforms outlined in FIRST STEP. But doing the latter on its own would be insuf­fi­cient.

Pundits continue to assign motives to Trump’s itchy pardon finger. He’s send­ing a message to Mueller! He’s send­ing a message to Michael Cohen! He’s play­ing with a shiny new toy! But the real­ity is, this time, the pres­id­ent has acknow­ledged the funda­mental unfair­ness of our crim­inal justice system. And instead of celebrity-inspired pardons and one-offs, there’s an open­ing for real reform.

We’d be fool­ish not to take it.