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Expert Brief

How to Fix the Federal Criminal Justice System (in Part)

Different problems require different solutions.

Published: January 2, 2020

People often talk about reform­ing “the crim­inal justice system.” But there is no single such system in the United States. When count­ing state and local juris­dic­tions, there are really thou­sands of “systems,” all with their own distinct chal­lenges.

Improv­ing them takes work on the local, state, and federal levels. Given that federal pris­ons hold just over 12 percent of the national prison popu­la­tion, federal justice reform might seem like it should be a low prior­ity. But it still holds more than any single state, making federal reform a vitally import­ant step on the path to ending mass incar­cer­a­tion. And mandat­ory minimum sentences, which are often applied to drug cases, can create uniquely unjust outcomes.

To under­stand how to fix these prob­lems, it’s import­ant to know what makes the federal justice system differ­ent in the first place.

Differ­ent cases, differ­ent prior­it­ies

The most common crimes, such as assault and theft, are gener­ally prosec­uted by cities, counties, and states. Federal law enforce­ment handles a narrower set of issues, like crimes that cross state lines or involve federal law. (For how to address the issues facing state crim­inal justice systems, see this compan­ion expert brief.)

It’s no surprise, then, that the federal prison popu­la­tion looks differ­ent than the states’. Nearly half of all people in federal prison are incar­cer­ated for drug offenses, compared to just 15 percent in state pris­ons — the product of a Supreme Court case allow­ing Congress to exer­cise broad regu­lat­ory author­ity over drugs, and a series of laws where Congress did just that. People convicted of weapons offenses — 19 percent of people in federal prison — make up another large part of the federal prison popu­la­tion, as do those held on immig­ra­tion offenses, compris­ing 6 percent. Compar­at­ively, more than half of those in state prison are incar­cer­ated for crimes clas­si­fied as viol­ent, like assault and robbery.

The unique role of federal senten­cing

Perhaps surpris­ingly, stays in federal prison are gener­ally shorter than those in state pris­ons: an aver­age of about 4 years in federal prison compared to about six-and-a-half years in state facil­it­ies. But some federal offenses carry signi­fic­ant, often inflex­ible penal­ties. This is due to the preval­ence of “mandat­ory minim­ums” in the federal system — laws requir­ing that upon convic­tion of a certain offense, the defend­ant must be sentenced to a minimum term of impris­on­ment.

Mandat­ory minimum penal­ties figure espe­cially prom­in­ently in drug cases. Accord­ing to the U.S. Senten­cing Commis­sion, an agency with an import­ant but advis­ory say in how federal crimes are sentenced, around half of all drug offend­ers in FY 2018 were subject to a mandat­ory minimum at senten­cing. More gener­ally, around a quarter of all federal cases triggered a mandat­ory minimum that year.

These penal­ties tend to fall hard­est on people of color: focus­ing again on FY 2018, roughly 70 percent of offend­ers convicted of a crime carry­ing a mandat­ory minimum were Black or Latino. To be sure, these mandat­ory punish­ments aren’t unique to the federal system. New York imposes minimum penal­ties for many felon­ies, for example. But given the federal govern­ment’s outsized role in drug enforce­ment, federal mandat­ory minim­ums have become synonym­ous with the drug war.

Mandat­ory minim­ums empower federal prosec­u­tion

Mandat­ory minimum penal­ties also give prosec­utors signi­fic­ant power over the sentence a defend­ant ulti­mately receives. If a prosec­utor charges a defend­ant with a crime carry­ing a mandat­ory minimum, the judge’s hands are tied: the court will not be able to impose a sentence below the one required by stat­ute, prevent­ing any judi­cial consid­er­a­tion of mercy. Know­ing this, federal prosec­utors can (and do, as NYU Law professor and senten­cing expert Rachel Barkow writes) at times lever­age the threat of a mandat­ory minimum to induce plea bargains and cooper­a­tion.

While it’s not unique to the federal system, this is an import­ant dynamic in federal drug enforce­ment, and helps explain some recent debates around federal crim­inal justice policy. In May 2017, for example, then-Attor­ney General Jeff Sessions rescin­ded Obama-era guid­ance that instruc­ted federal prosec­utors to consider char­ging some drug offenses in a way that would­n’t trig­ger a mandat­ory minimum. Sessions argued that revers­ing the rule would restore “tools” that prosec­utors need to “dismantle drug traf­fick­ing enter­prises,” an oblique refer­ence to using the threat of mandat­ory minim­ums to induce cooper­a­tion. On the other hand, this change took one path to prosec­utorial mercy off the table, mean­ing people would likely face longer prison sentences.

Again, many state prosec­utors enjoy compar­able discre­tion. But the length and preval­ence of federal mandat­ory minim­ums makes the prob­lem espe­cially stark in the federal system. And, the federal Bureau of Pris­ons remains the nation’s largest incar­cer­ator, magni­fy­ing the impact of unfair federal penal­ties.

Differ­ent bail and pretrial deten­tion prac­tices

In some areas the federal system is ahead of the states. Most juris­dic­tions use cash bail, where people accused of a crime remain in jail until trial unless they pay a certain amount of money (or have a bail bonds­man pay that amount, for a hefty fee). Func­tion­ally, this system ties someone’s free­dom to their abil­ity to pay for it.

Origin­ally, that was how the federal system worked too. “All too often we imprison men for weeks, months, and even years,” Pres­id­ent Lyndon John­son said, “solely because they cannot afford bail.” The Bail Reform Act of 1966 changed that, sweep­ing the old system aside and making pretrial release the default for most federal crimes.

Some Reagan-era changes narrowed that rule. But today, money bail is rarely used in federal courts. If the govern­ment can prove someone is danger­ous or poses a flight risk, they can be detained pending trial. Other­wise, condi­tions are set to ensure they return to court. Pretrial super­vi­sion may also be ordered, in which case a pretrial service officer may check in on someone accused of a crime, ensure compli­ance with any release condi­tions, and remind them of their required court appear­ances.

Federal pretrial release isn’t perfect, but it’s well ahead of where many of the states are today. It also offers ongo­ing proof that cash bail isn’t neces­sary to preserve public safety — some­thing state reform advoc­ates can point to in their own work.

What reform must accom­plish

Between the huge number of people locked up in the federal justice system and the unfair sentences some are serving in it, reform­ing the federal justice system is an imper­at­ive that we simply cannot ignore. But any propos­als must be tailored to the unique role of the federal govern­ment in the national crim­inal justice infra­struc­ture.

Last year saw a major reform bill enacted: the First Step Act, which cut some federal drug sentences and sought to improve condi­tions in federal prison. But the law is what it claims to be: just a first step in a much longer process. Other changes — like modern­iz­ing the federal clem­ency process and divert­ing people who commit lower-level crimes to altern­at­ives to incar­cer­a­tion — will also be neces­sary to improve the federal justice system and the lives of the people caught up in it.