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 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.
[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.