Sentencing Reform: A Page From the Old Playbook?

It has been a busy month so far for federal criminal justice reform. On October 1, the Senate unveiled the Sentencing Reform and Corrections Act of 2015. On October 8, the House Sentencing Reform Act was introduced.

The bills share much in common and have been portrayed as “comprehensive,” “extensive,” “landmark legislation,” a “game-changer,” and “the most important federal criminal justice overhaul in a generation.” But there are many questions about the mechanics of this legislation, as well as questions about the longer-term consequences—such as their impact on federal incarceration levels, racial disparities in sentencing and, importantly, recidivism.

There are also serious questions about whether they will ever see the light of day, given that Congress seems hopelessly mired in partisan politics.The bills’ provisions include the following: 

• reducing some mandatory minimum sentences for low level, non-violent drug offenders;* reducing the mandatory life without parole for a third drug or violent felony to 25 years:
• reducing the mandatory minimum 20 years for a second drug of violent felony to 15 years;
• closing the crack-powder cocaine disparity and making it retroactive;
• providing judges with more discretion in sentencing selected low-level drug cases:
• reducing the 15- and 25- year mandatory minimum sentences for certain gun crimes to 10 years and 15 years
• reducing the federal three-strikes law from life to 25 years;
• reducing time served for inmates who participate in prison programs; and
• creating some new mandatory minimum sentences. 
• While this legislation seems to be a step in the right direction, there is a bigger picture here that I believe it misses.

Granted, the majority of federal prison inmates are drug offenders, so a focus on reducing sentences for some low level, non-violent drug offenders is a good thing. We saw some of that last  week with the announcement of the early release of 6,000 non-violent drug offenders, who received what many consider exceedingly harsh penalties under the federal sentencing guidelines. Closing the crack-powder disparity should have been done years ago, and the evidence is clear that three-strikes laws are ineffective, as is much mandatory sentencing.

Giving judges the opportunity to mitigate sentences in selected low-level drug cases is a plus, as is motivating selected offenders to participate in programing while in prison.

My concern is not that this legislation doesn’t go far enough in what it proposes, although I believe that is the case. Rather, my concern is what it doesn’t propose.

The fact is: It’s based nearly exclusively on the old playbook.

It is the same tired story of trying to punish the crime out of offenders. Granted that punishment has been reduced in some cases. Nevertheless, a punishment-centered approach to crime and recidivism reduction is what has resulted in recidivism rates north of 70 percent and has cost hundreds of billions of dollars.

Not an impressive return on investment.

This “comprehensive,” “landmark,” “game-changing” legislation says very little about addressing why offenders end up in prison in the first place.  Both bills are essentially silent about the factors that commonly underlie criminal offending.  There is little in this legislation that seriously addresses the causes of  recidivism.

The evidence for a broader approach to justice reform is compelling.

Criminal offending is commonly a function of a variety of genetic and environmental influences, such as substance abuse, mental illness, neurodevelopmental and neurocognitive deficits, as well as educational deficits, employment problems, and homelessness.

Yes, sometimes crime is just a bad decision or the result of hanging around with the wrong crowd. But for the most part, crime is more complex and challenging.  In turn, reducing crime and recidivism requires that we focus on mitigating those factors implicated in offending.  Failure to do so has resulted in what most today would conclude is a wasteful, ineffective justice system.

Let me be clear.  These deficits, impairments, and disorders are not excuses for crime. They are not get-out-of-jail-free cards. But they are the more common crime-related factors that, if left unchanged, dramatically increase the likelihood of reoffending and re-victimization.

The bills pay insufficient attention to  the fact that 80 percent of individuals in the criminal justice system are substance abusers, that 40 percent have a diagnosable mental illness, and 60 percent  in prison have at least one traumatic brain injury.

We cannot punish away mental illness. Incarceration does not reverse traumatic brain injury, lack of impulse control, or PTSD. Simply not using cocaine in prison is not addiction treatment.

There’s nothing in the Senate or House bills that improves the rehabilitative efforts for offenders on probation, or enhances diversion programs like drug courts. The SAFE Justice Act, an alternative House bill, includes many of the sentencing changes discussed above. It also includes some provisions for recidivism reduction, but the scale of those provisions is unclear.

In short, federal criminal justice policy has been, and seemingly will continue to be, drastically out of balance, focusing nearly exclusively on punishment. Unfortunately, punishment does not change the underlying reasons many offenders are involved in crime, and that is the primary reason we have out-of-control recidivism and a failed criminal justice system.

We need incarceration, but on a much reduced scale. Since punishment does not change behavior, prison should be reserved for the truly dangerous, chronic, habitual offenders, and rehabilitation failures, those we need to separate from society. Prison should be for those we realistically fear, not those who simply make us mad.

Why is it important to discuss these limitations of federal reform efforts?

First, while there are some provisions for recidivism reduction in the legislation, it is unclear how extensive those efforts would be. Moreover, none of the bills make recidivism reduction a priority. This needlessly compromises public safety and wastes taxpayer money.

Second, while the federal system is actually quite small—federal prisons incarcerate only 12 percent of the total prison population in the U.S.—federal criminal justice reforms are quite visible and can provide a roadmap for others to consider.

Federal efforts can and do help set the agenda for the states. Unfortunately, the pending Senate Sentencing Reform and Corrections Act of 2015 and the House Sentencing Reform Act, which are garnering a considerable amount of attention and praise, set the wrong agenda.