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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.