Writing in the November 4, 2018 edition of Law 360, Michael Macagnone pointed out that the current lame duck Republican-controlled Congress has slightly more than two months to come to terms with a number of sentencing and prison reform issues that have, in one way or another, languished while lawmakers pursued individual agendas that brought more political profits than societal benefits. Criminal justice reform of any kind has never been an easy elephant to wrestle in Congress even when there was non-partisan love all around.


In an effort to at least get some of the reform measures enacted into law, the Senate Judiciary Committee, headed Sen. Chuck Grassley, R-Iowa, combined the sentencing and prison reforms together in a bundle package. Macagnone noted that these reform measures have been “hotly debated,” especially by conservative Republican lawmakers who fear the reforms could result in dangerous offenders being released along with the rehabilitated ones, putting society at risk.


Other lawmakers, including both moderate Republicans and some Democrats, have different concerns.


“[They] fear the inclusion of sentencing reform with prison reforms, which have generally had more support among lawmakers, will threaten the already-precious chances of passing a criminal justice bill this year before having to start all over again with a new Congress,” Macagnone wrote.


Criminal Justice Reforms Under Bundled Package


Some of the combined criminal justice reforms being considered by Congress are:


  • Reducing mandatory minimum sentencing;
  • Giving federal judges broader discretion in sentencing;
  • Changing how the U.S. Sentencing Guidelines calculate enhancements in drug crimes when a weapon is involved;
  • Make the Fair Sentencing Act of 2010 retroactive;
  • Compassionate leave for terminally ill inmates;
  • A ban on the use of restraints when female inmates are giving birth;
  • Allowing federal inmates to serve their sentences in prisons within 500 miles of their homes and relatives; and
  • Increase the number of days federal inmates could accrue goodtime (early release) from 47 to 54 days per year;


Criminal Justice Reforms Come at Time of Increased Awareness


Criminal justice reforms has become a prominent and continuing component in the public discourse as our society grapples with the increasing number of black males being killed by the police, mostly by white officers; the disproportionate sentencing between black criminal defendants and defendants of other races; the disproportionate number of  black inmates in both state and federal prison systems; the increased level of racism that makes black people increasing targets of unwarranted 911 emergency calls; and continuing racial profiling of non-white individuals stopped, frisked and questioned about possible criminal wrongdoing.

States Reform Ahead of Feds


This past Election Day more than a dozen states considered the following criminal justice reforms spelled out by Matt Ferner in the November 6, 2018 edition of Huffington Post:


  • Restore the right to vote to former convicted felons (excluding those convicted of murder and/or sex offenses);
  • Make the decriminalization of certain offenses or legalizing previously considered criminal behavior retroactive that could reduce sentences of those convicted under either circumstance;
  • Make the non-violent possession, use or obtainment of drugs a misdemeanor instead of a felony;
  • Ban probation revocations based on non-criminal infractions;
  • Allow inmates to seek reduction of their sentences if they participate in work or educational programs;
  • Ban non-unanimous verdicts in all criminal cases
  • Legalize or decriminalize marijuana;
  • Make the police more accountable for the unjustified use of deadly force;


Prison Populations Busting State, Fed Budgets


With increasing prison populations and the staggering costs to maintain those population, states across the nation and the federal government over the past decade have considered and passed laws that not only reduced inmate populations but changed the nature of the sentencing laws that sent so many of them to prison. These reforms include:


  • New York lawmakers in 2009 that reformed the harsh Rockefeller drug laws that required harsh mandatory minimum sentences for low-level drug offenses;
  • California voters in 2014 passed a ballot that reclassified certain low level drug and property offenses from felonies to misdemeanors; and
  • The U.S. Sentencing Commission in 2014 voted to reduce excessive sentences for some 46,000 federal inmates convicted of drug offenses.


The Vera Institute for Justice in May 2016 reported that 46 states enacted 201 wide ranging criminal justice reforms during the two-year period between 2014 and 2015. The Institute, with its Justice in Review: New Trends in State Sentencing and Corrections 2014-2015, said the reforms “ … enacted focused on three stages of the criminal justice system: creating or expanding opportunities to divert people away from entering the system; reducing prison populations by making certain offenses eligible for community-based sentences, reducing the length and severity of custodial sentences, adding early release options, and reducing the number of people re-admitted for violating probation or parole; and supporting reentry into the community for those leaving prison.”


In some very significant ways, Texas has led the nation in moving criminal justice reforms from the drawing board to meaningful action, such as: increased emphasis on penal rehabilitation, established risk-profiling initiatives; and worked with community partnerships, such as faith-based groups to help with the reentry of inmates back into the community. The state’s reform efforts have been endorsed and supported by the conservative Koch brothers.


“Texas has driven this [criminal justice reform] revolution … showing that you can reduce incarceration rates safely, while reducing crime rates and saving money,” Mark Holden, the general counsel for the Koch network, told the Fort Worth Star-Telegram this past April.


President Stands Opposed to Criminal Justice Reform


Despite all the successes at the state level, the criminal justice reforms currently before Congress are a hard bull to ride. Macagnone quoted Rep. Doug Collins, R-Ga., one of the supporters of the reforms, as saying that there is still an opportunity to pass the reforms but “it comes down to folks being willing to put aside the improbable for what is possible.” Collins added that despite the Trump administration’s calls for prison reform, the Senate simply does “have the support from the president” for sentencing reform.


Thus, it does not seem likely that meaningful criminal justice reform will be enacted by the current lame duck Congress. Moderate and conservative Republicans are too divided over the proposed sentencing reforms to reach a consensus and Democrats are unwilling to accept token prison reforms without meaningful sentence reforms.


The decision to combine the prison and sentencing reform measures will probably result in a demand for everything that ends up with nothing.


Society once again loses through political inaction.