This guest post is published around the Law and Society Association Conference in Washington, D.C. and from May 30 – June 2 and  Western Society of Criminology Conference in Honolulu from February 7 – 9. #WSC2019 #LSADC19 

By Hadar Aviram, author of Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment

When I published Cheap on Crime in 2015, it seemed that new winds of bipartisan reform were blowing through our bloated criminal justice apparatus. Prisons were closing; nonviolent offenders were being let out of prison; sentencing minimums were changing, and marijuana experienced a big legalization push. Cheap on Crime attributed much of these developments to the impact of the financial crisis of 2008, which made the scale of incarceration unsustainable and encouraged bipartisan cooperation to save and reinvest on criminal justice.

The 2016 presidential election threw these developments into an uncertain future, with Jeff Sessions, a known war on drugs supporter with antiquated views about crime control at the helm. Trump’s declarations, falsely tying immigration to criminality and capitalizing on racist and xenophobic currents in the American public, also foretold a future of old-school “tough on crime” policies with racial undertones.

But several important developments show that the Cheap on Crime platform is still alive, albeit not as robust as prior to the election. First, in September 2017, the House voted to curb civil asset forfeiture (the practice of seizing evidence suspected of being linked to a crime without proving the owner’s guilt or complicity.) The vote, spearheaded by both Republican and Democrat lawmakers, specifically curbed “adoptive forfeiture,” which allowed the federal government to take assets seized by local authorities–a practice that allowed local authorities to circumvent state laws that were stricter than under federal statute. The vote curbed Jeff Sessions’ enthusiasm for civil asset forfeiture and demonstrated the power of a narrow coalition between small-government Libertarians and progressives.

The First Step Act

The newer development is the First Step Act, which recently passed in the Senate–a watered-down bipartisan federal crime reform bill. The New York Times reports:

The First Step Act would expand job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.

But the legislation falls short of benchmarks set by a more expansive overhaul proposed in Congress during Barack Obama’s presidency and of the kinds of changes sought by some liberal and conservative activists targeting mass incarceration.

A look at the bill text provides some more insight.

The main idea behind the bill is a buzzword we’ve heard a lot in the last few years: evidence-based recidivism reduction. The idea is to develop programs (and provide grants) for risk and needs assessments of federal prisoners, which would predict the recidivism risk of every inmate and then match him or her with evidence-based programs that address that particular person’s needs. These could include visits, institutional transfers, more opportunities to use the commissary service or even email, and other incentive. The most notable of these, perhaps, is time credits attached to the programs, which can be credited toward early release. The usual exceptions apply: as with the Obama-era reforms, these privileges and options will be available to low-level, nonviolent inmates, and not to “non-eligible” inmates, which committed violence offenses.

In short, this is a clear sequel to the trends I pointed out in Cheap on Crime. Effectiveness and efficiency are explicit criteria for the programs; the bill passes with bipartisan support; and the bill applies to the usual clientele of humonetarian reform, i.e., nonviolent, low-level inmates.

The background to the First Step Act is indicative of the price we have to pay for bipartisan reform. Kamala Harris referred to this as a “compromise of a compromise,” which reminded me of the kind of discussion we had whenever I presented Cheap on Crime to a new audience. How much do we compromise or give up in order to get something? In the Trump Era, this means that bills of this kind are going to carry far less impact than their Obama-era predecessors, who were themselves products of compromise.

It will be interesting to see whether the new alliances in Congress produce more collaborations of this sort. In any case, these examples show that the bipartisan, cost-centered policymaking trend is not dead, and might outlive the “blast from the past” punitive policies of the Trump administration.

See Hadar Aviram at her WSC session