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What the Next Criminal-Justice Reforms Should Be

Congress is on the brink of passing the First Step Act. Here's what the second step may look like.

Andrew Burton/Getty Images

Earlier this week, the Senate overwhelmingly passed the First Step Act, and the House followed suit on Thursday, effectively guaranteeing that it will become the most significant federal criminal-justice law passed in the last quarter-century. (President Donald Trump supports the bill.) Even still, as the product of bipartisan compromise, the legislation doesn’t do nearly enough to bring about the end of the era of mass incarceration, as I noted last week.

The bill’s title is itself an acknowledgement of its shortcomings—that these reforms ought to be followed by others. So what would a Second Step Act look like?

For starters, lawmakers could work to make the First Step Act’s central pillars apply retroactively to current federal prisoners. One key provision in the bill scales back the three-strikes law for drug-related felonies by switching the mandatory life sentence to a 25-year sentence instead. Another provision, colloquially known as the “safety valve,” gives judges greater discretion in handing down sentences when a defendant commits low-level or nonviolent crimes. Both of the measures will help future prisoners return to society more quickly, but they won’t help prisoners sentenced under the old laws.

Congress has been here before. In 2010, a bipartisan group of lawmakers passed the Fair Sentencing Act to reduce the vast sentencing disparity for possession of crack cocaine versus powder cocaine. (Crack cocaine, which is more commonly used in black communities, was punished more severely than powder cocaine, which is more commonly used in white communities.) That law, however, did not affect prisoners who had already been sentenced under the old laws—until Congress made it retroactive in the First Step Act this year.

More also needs to be done to improve conditions for current prisoners. A group of Democratic senators introduced the Dignity for Incarcerated Women Act in July 2017, which focused on the unique challenges facing women behind bars. The First Step Act includes some of its provisions. It will formally ban federal prison officials from shackling pregnant women before, during, and shortly after they give birth, which can pose health risks. It also requires the Bureau of Prisons to consider placing incarcerated parents near their children.

But other parts from the 2017 bill are worth implementing, such as banning federal prisons from charging prisoners for their phone calls and requiring the Bureau of Prisons to implement video conferencing technology free of charge. Both measures would try to rein in companies that charge exorbitant rates for prisoners to stay in touch with the outside world. The Federal Communications Commission tried to cap prison phone rates under existing laws in 2015, but telecom companies successfully persuaded a federal appeals court to strike down the restrictions last year.

Most of the First Step Act focuses on sentencing and incarceration. Other aspects of the criminal justice system are in dire need of reform, too. In 2015, South Carolina Senator Tim Scott drafted the Walter Scott Notification Act in response to increased public scrutiny of police shootings. The bill would require state and local police departments that receive federal funds to submit yearly reports to the federal government about police shootings by their officers, the race and gender breakdown of those shot, and other valuable data points.

The senator named the bill after Walter Scott, to whom he is not related, after North Carolina police officer Michael Slager shot and killed Scott during a daytime encounter in 2015. Footage of the officer shooting him in the back drew national condemnation; Slager received a 20-year sentence after he pleaded guilty to federal civil-rights charges. Senator Scott’s bill would shine a light on one of the great statistical voids in modern American law enforcement. The closest thing to a national database on police shootings is currently maintained by The Washington Post. Scott tried without success to include his bill in the First Step Act; it’s worth trying again.

And if federal lawmakers want to truly reduce unnecessarily harsh sentences and tackle excessive incarceration, they could reverse one of the major tough-on-crime policies of their predecessors. Most states use parole to alleviate high prison populations and to help people convicted of crimes transition back into normal life more quickly. The federal government, however, abandoned the practice in the early 1980s. The Sentencing Reform Act of 1984 abolished the federal parole system for future inmates. The practical result is that there are few mechanisms to release federal prisoners who pose no danger to society or risk of re-offending.

In theory, the Bureau of Prisons can released aged and dying inmates with what’s known as “compassionate release,” a variation of parole. But the current system is far from adequate. A Marshall Project investigation found that federal prison officials only grant 6 percent of compassionate-release requests—an astounding figure given the nation’s rapidly aging prison population. What’s more, the system would not aid those who have effectively aged out of criminal behavior but aren’t sufficiently ill or infirm to qualify for release. Reviving the federal parole system would simultaneously be a bold step because it would reverse more than 30 years of federal prison practices, and a modest step because it’s something that most of the country currently does. In other words, it would be the perfect fit for Congress’s timid approach toward reform.


This article has been updated to reflect the fact that the House passed the First Step Act on Thursday afternoon.