With Bipartisan Support, Senate Could Pass Criminal Justice Reform This Year

President Donald Trump on Nov. 14 endorsed the First Step Act, a revised version of House legislation to reform the federal corrections system. Trump spoke in support of the bill after the Senate added modest sentencing reform provisions to H.R. 5682, which focused primarily on prison release policies. The next step would be a vote by the full Senate.

The prospect of movement this year on the long-negotiated package comes amid overwhelming evidence that prisons are not the most cost-effective way to reduce crime. In recent years, state governments have responded to this reality with successful reforms that are helping to protect public safety and save taxpayers billions of dollars.

Beginning with Texas in 2007, more than two dozen states have adopted wide-ranging reforms, frequently with overwhelming bipartisan support. Many of these states—including Georgia, Louisiana, and Mississippi—crafted their policy changes as part of the Justice Reinvestment Initiative, a collaborative effort between Pew and the U.S. Department of Justice. These states have shown that reducing prison populations and reinvesting savings in evidence-based recidivism reduction programs offer better returns on public safety spending.

The federal legislation, which includes ideas adopted at the state level, would bring reform to a system in need of change. Since 1980, the federal prison population has risen more than 700 percent while annual federal prison spending has climbed nearly 600 percent—from less than $1 billion to more than $7 billion in 2018 in inflation-adjusted dollars.

Increased rates of imprisonment for those convicted of drug offenses—linked to policy decisions such as mandatory minimum sentencing based on drug quantity and the elimination of federal parole—have helped to fuel this growth. But a large body of research shows little relationship between the length of prison terms and recidivism rates. At the same time, substantial evidence indicates that many of those incarcerated for low-level drug trafficking crimes are rapidly replaced by other people in a still-vibrant market. In addition, research has found  no statistically significant relationship between state drug imprisonment rates and three key indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The package under consideration in the Senate would take a new approach by making important changes to federal drug sentencing laws. Those include reducing “three strikes” life sentences for nonviolent offenses and bringing sentences for crack cocaine handed down before 2010 in line with the system updated by Congress eight years ago. In addition, the bill directs the Bureau of Prisons to calculate the time people can earn off a sentence for good behavior at 15 percent of their total sentence, the level intended by Congress.

Lawmakers are also seeking to respond to the growing prevalence of opioid use disorder within the federal prison population. The legislation would direct the Bureau of Prisons to assess its capacity to provide medication-assisted treatment—the most effective therapy for this chronic condition—to people in custody and implement plans to expand access to the lifesaving therapy. The bureau also would be required to help more people access treatment immediately after leaving prison, when individuals are most susceptible to overdose.        

Policymakers today have access to ample research to support additional sentencing and corrections reforms. For example, federal lawmakers could reserve lengthy mandatory minimums for high-level drug traffickers and provide more people at high risk of reoffending with opportunities to participate in recidivism reduction programs.

Congress also should consider strengthening community supervision through earned compliance credits—generally sentence reductions linked to good behavior—to address the increasing number of people under federal supervision. Since 1995, the number of people on federal supervised release has more than tripled while average sentence length increased 12 percent. Many states meanwhile have strengthened community supervision and increased successful completion by implementing swift, certain, and proportionate sanctions for violations and allowing people to earn time off their supervision terms when they successfully comply.

The First Step Act would take important strides toward fair, evidence-based sentencing and release policies. Still, the states’ experiences demonstrate that Congress should consider this as only one step toward a larger overhaul of the criminal justice system.

Jake Horowitz is a director with The Pew Charitable Trusts’ public safety performance project, and Beth Connolly is a director with Pew’s substance use prevention and treatment initiative.