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Analysis

Trump’s Budget Requests Nothing for the FIRST STEP Act

The president’s record on criminal justice reform suggests a long road ahead for his signature bill.

  • Bryan Furst
March 21, 2019

The FIRST STEP Act was an unlikely bipar­tisan success that brought modest but desper­ately needed senten­cing and prison reforms to the federal system. But the law can only func­tion as advert­ised if it is fully funded — a prospect that seems unlikely after Pres­id­ent Trump’s exec­ut­ive budget, released in full this past Monday, omit­ted any fund­ing request for imple­ment­ing the law.[i]

Congress can and must fix this by fully fund­ing the FIRST STEP Act in the next appro­pri­ations cycle. But why would Pres­id­ent Trump not fund a key legis­lat­ive victory that he has repeatedly promoted and taken credit for?

The answer is unclear, but the Pres­id­ent’s lack of follow-through under­scores his past record on crim­inal justice reform in general. Consider three other cases where the Admin­is­tra­tion has weakened or actively harmed efforts to reform the crim­inal justice system:  

Attempts to Defund the Justice Rein­vest­ment Initi­at­ive (JRI)

In addi­tion to not fund­ing the FIRST STEP Act, Trump’s most recent budget seeks, yet again, to elim­in­ate JRI, a program that provides tech­nical assist­ance to states seek­ing to safely reform their justice systems. This proposed cut is alarm­ing given that more than 85 percent of the nation’s 1.5 million pris­on­ers are in state facil­it­ies, to say noth­ing of the 10.6 million local annual jail admis­sions and 4.5 million people on state community super­vi­sion.

JRI is argu­ably the most effect­ive federal tool to date to reform state justice systems. The program helps state and local govern­ments analyze crim­inal justice data and make informed policy decisions to “reduce correc­tions spend­ing and increase public safety.” From 2007 to 2018, 35 states under­went reform through the JRI process. In this time­frame, state impris­on­ment declined 11 percent, and by 2016, states had already saved $1.1 billion through JRI reforms, with billions more to be real­ized. 

Consid­er­ing the program’s success and cost-effect­ive­ness—it only cost the federal govern­ment $25 million in 2018—it is no wonder that Congress opposed Trump’s request and ulti­mately funded it. Let’s hope they do so again this year. 

Regress­ive Depart­ment of Justice (DOJ) policy

Trump’s efforts to combat reform are much more direct through his Attor­ney General (AG) appoint­ments. The AG has broad discre­tion to set DOJ policy, which dictates who we send to federal prison and for how long. At the DOJ, as much as anywhere, people are policy. And Trump’s people are liter­ally and figur­at­ively out of the “tough on crime” era.

Under former Attor­ney General Jeff Sessions, the DOJ took steps to reignite the War on Drugs, begin­ning by revers­ing a memo from former Attor­ney General Eric Holder that encour­aged his attor­neys to pursue more leni­ent drug sentences. Sessions replaced Hold­er’s direct­ive with instruc­tions to do just the oppos­ite: “charge and pursue the most seri­ous, read­ily prov­able offense.”

The results are show­ing. Accord­ing to the most recent data, drug traf­fick­ing sentences were up in the first three quar­ters of FY2018 to an aver­age of 76 months, compared to 66 months in 2016.

The DOJ is prosec­ut­ing cases at histor­ic­ally high levels, a stat­istic that former AG Sessions has touted as a land­mark achieve­ment. But a look at the numbers shows that about 61 percent of all federal crim­inal prosec­u­tions in 2018 were related to immig­ra­tion. This is despite numer­ous stud­ies, includ­ing those conduc­ted by conser­vat­ive think tanks, that show immig­rants are less likely to commit crimes than the general popu­la­tion. Whatever is driv­ing DOJ policy, it does not appear to be concern for public safety. 

Before step­ping down, Sessions struck a crip­pling blow to the use of consent decrees—a tool used by the federal govern­ment to enforce reforms in police depart­ments that routinely viol­ate consti­tu­tional rights.

These are just a few of the troub­ling policies imple­men­ted by this DOJ. And there is little chance it will change course under the direc­tion of AG William Barr, who also has a troub­ling crim­inal justice track record, and praised Sessions for his actions in the role.

Troub­ling Appoint­ments to the U.S. Senten­cing Commis­sion

Trump has made equally concern­ing nomin­a­tions to the U.S. Senten­cing Commis­sion (USSC), an agency that is respons­ible for setting federal senten­cing guidelines that judges and prosec­utors use to impose punish­ment. The Commis­sion also produced what may be the most import­ant federal crim­inal justice reform to date: the “Drugs Minus Two” amend­ment, which made 49,704 non-viol­ent drug offend­ers eligible for resen­ten­cing.

By 2018, more than 31,000 people had been given shorter sentences under this amend­ment—a major reason why the federal prison popu­la­tion declined by 40,000 people since 2013. The reform was not a polit­ical effort but rather a unan­im­ous decision made by six USSC Commis­sion­ers (three Repub­lic­ans, three Demo­crats) based on an exhaust­ive review of the data.

Trump’s nomin­a­tions jeop­ard­ize the USSC’s commit­ment to bipar­tisan decision-making and rigor­ous data analysis. For example, Judge Henry Hudson (Or “Hang ‘Em High Henry” as he was once nick­named) was a notori­ously punit­ive prosec­utor known for aggress­ively prosec­ut­ing pros­ti­tu­tion and making ques­tion­able claims link­ing porno­graphy to viol­ence. Far worse is Bill Otis, who not only called for the USSC to be abol­ished in 2011, but routinely makes perni­cious claims about the causes of crime with little to no evid­ence to back them up.

The USSC has managed to stand above partis­an­ship and consist­ently make recom­mend­a­tions firmly rooted in data. It is no place for ideo­logues.

The Road Ahead

Of course, many of these fears have not come true — Trump’s USSC appoint­ments have not been confirmed and JRI still stands. But they only stand because of Congres­sional resist­ance to the Admin­is­tra­tion’s regress­ive policy choices.

Trump’s actions put the onus on Congress to hold the line and preserve fund­ing for JRI, prevent the USSC from turn­ing into a weapon against rather than for crim­inal justice reform — and fully fund the FIRST STEP Act. Until Trump begins consist­ently support­ing rather than under­min­ing crim­inal justice reform, his signa­ture legis­lat­ive victory will ring hollow.

 

(Image: Win McNamee/Getty)


[i] It was recently repor­ted that Trump reques­ted $14 million to fund FIRST STEP but a close read of the budget reveals those funds are for “the devel­op­ment of innov­at­ive pilot projects in reentry and recidiv­ism reduc­tion approaches,” and not earmarked for the law. The only budget request specific­ally tied to FIRST STEP is $1.5 million for an eval­u­ation of exist­ing Second Chance Act programs.