Simple Justice: An Overview of Justice Reform in the 115 th Congress

Transcription

1 Issue Brief l October 2017 FreedomWorks.org Simple Justice: An Overview of Justice Reform in the 115 th Congress Jason Pye, Christina Herrin, and Sarah Anderson Summary Justice reform and reinvestment is an issue that affects all Americans, and one on which Republicans and Democrats alike can and have come to agreement. The United States has the highest incarceration rate in the developed world, resulting from overcriminalization and excessively strict sentencing laws, not from an innately criminallyinclined population. Over-incarceration has created a multitude of problems for American society. Public safety is threatened by wasteful use of limited resources that leaves dangerous criminals on the streets. This is compounded by a lack of effective recidivism reduction and reentry programming in prisons, releasing offenders back into society only to commit more crimes. Spending problems grow out of the exorbitant cost of imprisonment, especially for lengthy sentences imposed by broad-sweeping federal laws. The criminal penalties attached to what is estimated to be more than 400,000 federal regulations, combined with lack of mens rea protections, imprisons individuals who are of innocent mind and pose no threat to society. Imprisoning these individuals not only increases federal and state spending, but also unnecessarily exposes non-criminals to the criminal justice system. Difficulty reentering into society is a massive factor driving up recidivism rates, 1 and it is this phenomenon corrections reform works to reduce. By using evidence-based programming to educate and mentor prisoners during their imprisonment, as well as limited record-sealing and expungement for specific juvenile cases, we can proactively work against unintentionally creating career criminals. 1 Recidivism is defined different ways over different amounts of time. Typically, states measure this in rearrest rates or reconviction rates over three to five years. The U.S. Sentencing Commission s March 2017 study, The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders, measure both rearrest and reconviction rates of federal offenders released in FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

2 States have been the leaders in tackling this problem, with Texas, Georgia, and South Carolina serving as primary examples to the successes of justice reform in saving taxpayer money and simultaneously reducing both crime and recidivism rates. A common misconception is that criminal justice reform is a left-wing issue, as Republicans historically have been known for being tough on crime; a perception furthered by some current political figureheads, such as Attorney General Jeff Sessions. Nevertheless, this conventional wisdom is aptly debunked by the actions of the aforementioned states in taking leadership roles on the issue. Rather, it is the federal government that has lagged behind in garnering public support for common-sense changes that will keep our nation safer while saving taxpayers money. Proven champions of justice reform, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.), and Reps. Doug Collins (R-Ga.) and Justin Amash (R-Mich.), have not backed down in their efforts. In this 115th Congress, these long-time advocates for the issue have introduced significant new legislation, as well as reintroduced widely supported legislation from past Congresses. Cautious optimism is appropriate in evaluating the potential movement of these bills through committee and onto the floor. Increasing understanding of the issues at hand and their societal and fiscal impact, combined with the successes of states in implementing similar reforms with significantly more violent overall prison populations than in the federal prison system, are strong points to be made in advocating for the passage of these reforms. Fortunately, statistics will illuminate the truth on this issue, and the truth is that justice reform and reinvestment work. It is now time for Congress to take charge, do what is best for the American people in every regard by making reform a legislative priority. The bills, and the necessary tools, are already available. Introduction Since 2007, more than 30 states have implemented justice reinvestment initiatives focused on lowering corrections costs, reducing recidivism rates, and enhancing public safety. 2 The states that have implemented these reforms include several traditionally Republican states like Georgia, South Carolina, and Texas. Unfortunately, Congress has lagged behind the states. In 1986, Congress passed the Anti-Drug Abuse Act, 3 which created harsher penalties for drug crimes. These penalties included enhanced sentences for crack cocaine. Congress further tackled drug crime in 2 Adam Gelb, 33 States Reform Criminal Justice Policies Through Justice Reinvestment, The Pew Charitable Trusts, November 16, H.R. 5484, 99th Congress (1986) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

3 1994 with the passage of the Violent Crime Control and Law Enforcement Act. 4 These two laws are among the avenues Congress took to enhance the war on drugs. Congress has passed some legislation to address problems in prisons, such as the Prison Rape Elimination Act, 5 and assists states in their efforts to reduce recidivism through the Second Chance Act. 6 In 2010, Congress reduced the sentencing disparity between crack cocaine and powdered cocaine, from 100-to-1 to 18-to-1, through the Fair Sentencing Act. 7 More recently, Congress has attempted to take action on legislation that reflects statebased justice reinvestment initiatives. In 2014, the Senate Judiciary Committee marked up the Smarter Sentencing Act, 8 which would have reformed sentences for low-level, nonviolent drug offenders, and the Recidivism Reduction and Public Safety Act, 9 which would have implemented evidence-based programs to reduce offenders risk of returning to federal prison. These bills were not brought to the floor for consideration in a Senate then controlled by Democrats, although the bills would have likely passed by a filibusterproof margin. In the 114th Congress, a group of eight senators which included Judiciary Committee Chairman Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Dick Durbin (D-Ill.), and Sheldon Whitehouse (D-R.I.) negotiated an agreement that served as a path forward on criminal justice reform. The agreement, the Sentencing Reform and Corrections Act, 10 was marked up in committee. The bill offered modest sentencing reforms, similar to but not as extensive as those in the Smarter Sentencing Act, and evidenced-based corrections reforms like those found in the Recidivism Reduction and Public Safety Act. Certain provisions of the bill, however, found opposition. One particular provision that sought to clarify the Armed Career Criminal Act (ACCA), for example, was met with opposition from some Judiciary Committee members, including Sens. Ted Cruz (R-Texas) and David Perdue (R-Ga.), both of whom were co-sponsors of the Smarter Sentencing Act. 11 The residual clause of the ACCA had been successfully challenged in the Supreme Court 12 in The court, with Justice Antonin Scalia writing for the majority, determined that the clause was too vague and failed to provide fair notice of what could be considered a violent felony, thus violating due process. The changes made by Sentencing Reform and Corrections Act were seen as an attempt to prevent the ACCA from further successful court challenges H.R. 3355, 103rd Congress (1994) 5 S. 1435, 108th Congress 6 H.R.1593, 110th Congress (2007) 7 S. 1789, 111th Congress (2010) 8 S. 1410, 113th Congress (2013) 9 S.1675, 113th Congress (2013) 10 S. 2123, 114th Congress (2015) 11 S. 502, 114th Congress (2015) 12 SCOTUSblog, Johnson v. United States, Retrieved October 10, Congressional Research Service, Sentencing Reform at the End of the 114th Congress, January 24, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

4 With a high-profile supporter like Speaker Paul Ryan (R-Wis.), there was a similar effort in the House of Representatives. Several sentencing and corrections reform bills were introduced in the House during the 114th Congress, including the SAFE Justice Reinvestment Act. 14 The bills that received the most attention in the House were the Sentencing Reform Act, 15 the Corrections and Recidivism Risk Reduction Act, 16 and the Criminal Code Improvement Act. 17 Each of these bills was marked up in the House Judiciary Committee but did not come to the floor for consideration. Although there is a vocal minority in Congress opposed to pursuing these reforms, the votes do exist to pass legislation designed to reform federal sentencing laws and the federal corrections system. Several criminal justice reform bills have been introduced in the 115th Congress, the most notable of which are the Prison Reform and Redemption Act 18 and the Sentencing Reform and Corrections Act. 19 These and other bills will be examined later in this issue brief. Some may doubt the opportunities for any significant action on justice reform in the 115th Congress. President Donald Trump ran and won on a law and order platform. He also appointed a vocal opponent of most legislative efforts to reform the federal justice system, Jeff Sessions, to serve as his attorney general. Since assuming this role, Attorney General Sessions has reversed a directive 20 by one of his predecessors allowing federal prosecutors latitude on sentences sought for nonviolent drug offenders. 21 The 2013 directive that was reversed, issued by then- Attorney General Eric Holder, is credited with lowering the number of drug offenders subject to mandatory minimum sentences, but not by a substantial margin. 22 Still, Attorney General Sessions has been open to some areas of reform. As a senator, he co-sponsored the Fair Sentencing Act. He has also agreed that the stacking of sentences when sentences for certain offenses are served consecutively, not concurrently should be addressed. 23 President Trump has been malleable on legislative issues. He appears willing to negotiate when there is a possibility of positive news coverage on a legislative achievement that he can claim. Justice reform offers this transactional president a significant opportunity for one such legislative achievement. 14 H.R. 2944, 114th Congress (2015) 15 H.R. 3713, 114th Congress (2015) 16 H.R. 759, 114th Congress (2015) 17 H.R. 4002, 114th Congress (2015) 18 H.R. 3356, 115th Congress (2017) 19 S. 1917, 115th Congress (2017) 20 Josh Gerstein, Sessions moves to lengthen drug sentences, Politico, May 12, Charlie Savage, Justice Dept. Seeks to Curtail Stiff Drug Sentences, The New York Times, August 12, Jacob Sullum, How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?, Reason, May 17, Senate Judiciary Committee, Executive Business Meeting, October 22, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

5 There are advocates for justice reform inside the White House, which is promising for the potential of administration support of the issue. President Trump s son-in-law, Jared Kushner, who serves as the director of the White House Office of American Innovation, has been the most prominent of these advocates. Earlier this year, Kushner met with key senators, including Judiciary Committee Chairman Grassley and Sen. Lee, to discuss the White House s interest on justice reform. 24 Separately, Kushner hosted a bipartisan discussion at the White House, although the topic was limited to prisoner reentry, which would typically mean corrections reform was the agenda. 25 More recently, Kushner and his wife, Ivanka Trump, met with a bipartisan group of senators to talk about legislation introduced in early October. 26 There are still challenges. An attorney general hostile to reform and outside voices who either misrepresent what justice reform seeks to accomplish, ignore the successes of the states, or prefer clickbait article headlines over facts will be obstacles to overcome. The White House may not fully engage on these legislative efforts, as it would with other priorities like health insurance reform or tax reform, but there are reasons to be cautiously optimistic. Tough on Crime Policies Eventually See Declining Effectiveness Some politicians view justice reform skeptically. They tend to take the decline in crime since the 1990s as proof that the tough on crime policies of the past worked. 27 The best research, however, estimates that only 25 percent of the reduction in crime in the 1990s is attributed to lengthy prison sentences, a cornerstone of tough on crime policies. 28 This means that 75 percent of the decline in crime rates from this period were a result of other factors, many of which are debated. There is also the prospect of diminishing returns of incarceration. In a 2004 paper, Steven Levitt, an economist and a co-author of Freakonomics, who once subscribed to the theory that incarceration played a partial role in the decline of crime rates, warned of the eventuality of diminishing returns. 29 [G]iven the wide divergence in the frequency and severity of offending across criminals, sharply declining marginal benefits of incarceration are a possibility. In other words, the two-millionth criminal imprisoned is likely to impose a much 24 Emma Loop, White House Sends Jared Kushner To Meet With Top Senators On Improving The Criminal Justice System, BuzzFeed, March 30, Kelly Cohen, Jared Kushner convenes bipartisan group to discuss prisoner re-entry, Washington Examiner, September 14, Michelle Smith, Ivanka Trump, Jared Kushner host dinner on criminal reform, Associated Press, October 10, b97043e57a22_story.html 27 Pew Research Center, Gun Homicide Rate Down 49% Since 1993 Peak; Public Unaware, May 7, William Spelman, The Limited Importance of Prison Expansion, Cambridge University Press, Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, Journal of Economic Perspectives, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

6 smaller crime burden on society than the first prisoner. Although the elasticity of crime with respect to imprisonment builds in some declining marginal returns, the actual drop off may be much greater. We do not have good evidence on this point. These caveats suggest that further increases in imprisonment may be less attractive than the naïve cost benefit analysis would suggest. More recently, Levitt concluded, Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third. Composition of the Federal Prison Population by Offense Type Type Percentage Inmates Drug Offenses 46.20% 80,944 Weapons, Explosives, Arson 17.10% 29,921 Sex Offenses 9.10% 15,854 Immigration 7.80% 13,598 Extortion, Fraud, Bribery 6.40% 11,249 Burglary, Larceny, Property Offenses 4.70% 8,177 Robbery 3.80% 6,595 Homicide, Aggravated Assault, and Kidnapping Offenses 3.20% 5,588 Other 1.80% 3,091 Source: Bureau of Prisons, August 26, 2017 The most recent analysis available suggests that the United States is past the point of diminishing returns and may actually be making communities less safe, not more. 30 Summarizing his conclusions, David Roodman writes, [B]uilding and filling prisons is not making people safer. It may even be endangering the public. 31 Another concern is the overall economic costs of incarceration. Advocates for reform often focus on the direct costs at all levels of government, which are around $80 billion annually, but larger economic costs are significantly higher, potentially as high as $1.2 trillion. 32 One source of the problem is the lack of options for offenders when they return to their communities after their stays in prison have ended, highlighting the need to promote effective reentry assistance. 30 David Roodman, The impacts of incarceration on crime, Open Philanthropy Project, September David Roodman, Aftereffects: In the U.S., Evidence Says Doing More Time Typically Leads to More Crime After, Open Philanthropy Project, September 22, Neil Schoenherr, Cost of incarceration in the U.S. more than $1 trillion, The Source, September 7, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

7 Citing a study published by the National Research Council of the National Academies, 33 Sen. Mike Lee (R-Utah) explained that harsh prison sentences do not improve public safety and instead make existing problems in communities impacted by overincarceration worse. 34 National Research Council of the National Academies issued a major study of incarceration in the United States. One of their main conclusions is that mandatory sentencing and excessively long sentences generally do not have a significant deterrent effect and are ineffective unless targeted at offenders with a very high rate of recidivism or extremely dangerous offenders. The National Research Council concluded: [We] have reviewed the research literature on the deterrent effect of such laws and have concluded that the evidence is insufficient to justify the conclusion that these harsher punishments yield measurable public safety benefits. And recent data from the U.S. Sentencing Commission, an independent and bipartisan Federal agency, shows that shorter sentences can accomplish the same goals without compromising public safety. Our communities have paid a high cost for the stiff sentences that mandatory minimums require. The National Research Council found that high incarceration rates are concentrated in poor, minority neighborhoods, and that the incarceration of significant numbers of residents in these neighborhoods actually compounded existing social and economic problems such as unemployment, poverty, family disruption, poor health, and drug addiction. More options on the back-end of an offender's stay can reduce his or her risk of recidivism. States have pursued various policies to accomplish this goal, including eliminating the box asking applicants for government jobs if they have a criminal history (known as ban the box or fair hiring, many private employers have also implemented this policy), record sealing and expungement, and occupational licensing reform. Obviously, prisons serve an important role in society. But as one prominent conservative advocate for justice reform, Pat Nolan, has said, Prisons are for people that we re afraid of, but we ve filled them with people we re just mad at. Firearm Involved? Involvement of a Firearm in Federal Drug Cases All Drugs Powdered Crack Heroin Marijuana Meth Other Yes 24.1% 21.9% 32.0% 17.3% 15.2% 25.5% 17.6% No 75.9% 78.1% 68.0% 82.7% 84.8% 74.5% 82.4% 33 National Research Council of the National Academies, The Growth of Incarceration in the United States Exploring Causes and Consequences, Vol. 161 Cong. Rec. 45 (2015) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

8 Source: Bureau of Justice Statistics 35 In other words, lawmakers should reserve limited resources for violent offenders and implement diversion or rehabilitation programs for those who have addiction problems and back-end reforms for those who are looking to turn their lives around and contribute positively to society upon their release. Continuing Successes of the States When FreedomWorks focuses on justice reinvestment initiatives at the state level, we usually discuss the efforts of three specific states: Georgia, South Carolina, and Texas. These states are traditionally Republican and generally thought of having a strong conservative presence in their respective legislatures. The efforts in Georgia and Texas were covered and their successes analyzed in a 2015 FreedomWorks Foundation publication. 36 Each of these states faced the same set of problems. Prison populations were rising, corrections costs were consuming more of state budgets, and recidivism rates were unacceptable. Governors and state lawmakers sought a path that would reduce the costs of incarceration, lower recidivism rates, increase accountability on those who are incarcerated, and enhance public safety. Additionally, these states also emphasized reserving prison bed space for violent offenders. A Tale of Three States: Crime Rates in Georgia, South Carolina, and Texas (Rates Per 100,000 Inhabitants) State Year(s) Overall Violent Homicide Rape Property , , Georgia , , , , , , , , South Carolina , , , , , , , , Texas , , , , , , Texas laid the groundwork for justice reinvestment initiatives in other states. In 2007, Texas ramped up its justice reinvestment initiative. Rather than spend $523 million on immediate prison construction needs and another $2 billion by 2012, lawmakers, led by 35 Sam Taxy, Julie Samuels, and William Adams, Drug Offenders in Federal Prison: Estimates of Characteristics Based on Linked Data, Bureau of Justice Statistics, October Jason Pye, Federalism in Action: How Conservative States Got Smart on Crime, FreedomWorks Foundation, August 24, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

9 then-texas House Corrections Committee Chairman Jerry Madden (R-Plano), appropriated $241 million to implement drug courts, drug treatment programs, and inprison rehabilitative programs, such as education and work training, designed to reduce recidivism. Ten years later, these reforms are considered a success. Recidivism declined, crime rates continued on a downward path, and lawmakers averted $3 billion in prison costs. In fact, even while Texas incarceration rate declined by 16.6 percent, the state s crime rate fell by 33.4 percent. 37 Texas is now seeing its lowest crime rates since Georgia followed the lead of Texas. In 2011, a newly elected Republican governor, Nathan Deal, a former member of the U.S. House of Representatives, made justice reinvestment a part of his legislative agenda. During his inaugural address, Gov. Deal offered a glimpse of his concerns with the state of affairs in Georgia s criminal justice system. 38 For violent and repeat offenders, we will make you pay for your crimes. For other offenders who want to change their lives, we will provide the opportunity to do so with Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded probation and treatment options As a State, we cannot afford to have so many of our citizens waste their lives because of addictions. It is draining our State Treasury and depleting our workforce. Between 1990 and 2011, Georgia saw its prison population more than double, reaching nearly 56,000 prisoners. The Peach State had one of the highest incarceration rates in the United States, annual corrections costs eclipsed $1 billion, and recidivism was close to 30 percent. If Gov. Deal and the Georgia General Assembly had done nothing to reverse this trend, the prison population would have grown to almost 60,000 prisoners in 2016, costing taxpayers an additional $264 million. The Special Council on Criminal Justice Reform for Georgians recommended 39 that the General Assembly adopt a package of reforms to create a safety valve exception to mandatory minimum sentences for nonviolent drug offenders, 40 establish accountability courts, require front-end risk assessments for nonviolent drug and property offenders, and increase the dollar threshold for felony theft. These were only a few of the reforms recommended by the council. In 2012, the General Assembly passed the recommendations through HB Reforms have passed in every subsequent session, with little to no opposition. 37 Marc Levin, Texas should close prisons, but strengthen alternatives, Houston Chronicle, May 8, Office of the Governor, Inaugural Address of Governor Nathan Deal, January 10, Special Council on Criminal Justice Reform for Georgians, Report of the Special Council on Criminal Justice Reform for Georgians, November Gregory Newburn, Mandatory Minimum Sentencing Reform Saves States Money and Reduces Crime Rates, American Legislative Exchange Council, March 29, HB 1176, Georgia General Assembly (2012) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

10 A 2016 report explained the success of Georgia s justice reinvestment initiative: Expanded use of accountability courts and other diversionary programming, improved educational and vocational training for offenders currently incarcerated, and implementation of the state s reentry initiative have all contributed to a reduction of Georgia s recidivism rate from approximately 30 percent in 2009 to 26.4 percent last year. State Prison Populations by Offense Type Violent Property Drug Public Order Other CY % 19.00% 15.70% 11.60% 0.80% Source: Bureau of Justice Statistics 42 In 2010, the South Carolina Legislature approved the Omnibus Crime Reduction and Sentencing Reform Act, 43 which overhauled the state s sentencing and corrections policies. Prior to this legislative effort, South Carolina had seen the size of its prison population grow from some 9,000 inmates in 1983 to approximately 25,000 in The cost burden on taxpayers grew significantly as lawmakers increased spending on corrections by more than 500 percent over the same period. The approach of the past was failing. Despite South Carolina s reliance on incarceration, recidivism rates remained depressingly high, and the state s prison population was expected add an additional 3,200 inmates by Lawmakers motivation in passing the Omnibus Crime Reduction and Sentencing Reform Act was to promote efficiency in the state s criminal justice system. The legislation, which was signed into law by then-gov. Mark Sanford, adopted a similar approach to that taken in other conservative states, such as Texas. The legislation stiffened sentences for violent offenders, reformed sentences for lowlevel, nonviolent offenders, and took a proven approach to corrections by relying on data-driven policies to assess the risks of an inmate becoming a repeat offender once they re-entered society. A June 2015 report 44 noted that the average prison population in the state has declined by nearly 10 percent. A more recent update showed a 14 percent decline. 45 While the non-violent population dropped by 30 percent, the number of violent inmates actually increased by 6 percent. The South Carolina Department of Corrections also closed two facilities. 42 E. Ann Carson and Elizabeth Anderson, Prisoners in 2015, Bureau of Justice Statistics, December S 1154 South Carolina General Assembly (2010) 44 South Carolina Sentencing Reform Oversight Committee, June The Pew Charitable Trusts, South Carolina Data Analysis Part 2: Community Supervision Trends, September 28, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

11 Although South Carolina s prison population declined, public safety in the state was enhanced after the passage of these common sense criminal justice reforms and taxpayers saved money, nearly $500 million through The states have proved that justice reform and reinvestment can and does work. The efforts are not a cure-all for crime. Many communities will continue to be hampered by drug crime and violent crime. But the states have gotten smarter on crime, finding their own unique ways of dealing with the problems that communities face. Major Justice Reform Initiatives in the 115th Congress The perceived political atmosphere has not tamped down members of Congress from introducing legislation that reforms federal sentences or adult and juvenile corrections. As of early October 2017, dozens of bills dedicated to this unique set of issues has been introduced. Additionally, congressional committees have either held markups on introduced legislation, hearings on these subjects or plan to hold to hearings. Floor action, however, has been limited to juvenile justice reform and a small number of bills that increase penalties for certain offenses. The most prominent hearing thus far took place on June 28 in the House Oversight and Government Reform Committee. 47 Chairman Trey Gowdy (R-S.C.), a former prosecutor who has expressed interest in reforming federal sentencing laws for drug offenders, 48 called the hearing shortly after taking over the chairmanship of the committee. Sens. Cory Booker (D-N.J.) and Tim Scott (R-S.C.) were among the witnesses to testify during the hearing. Before the introduction of the Sentencing Reform and Corrections Act in early October, major legislation on justice reform had been limited. After the departure of Rep. Jason Chaffetz (R-Utah) from Congress, the Corrections and Recidivism Risk Reduction Act was initially without a champion. Rep. Doug Collins (R-Ga.), whose home state has implemented a justice reinvestment initiative under the leadership of Gov. Nathan Deal (R-Ga.), 49 introduced the Prison Reform and Redemption Act. 50 The Prison Reform and Redemption Act would require the Attorney General to develop a post-sentencing risk and needs assessment tool. All prisoners in the federal prison system would be assigned recidivism reduction programming. The Bureau of Prisons would be responsible for the implementation of the risk and needs assessments for each prisoner and development of recidivism reduction programming. 46 The Pew Charitable Trusts, Public Safety in South Carolina, August 13, House Committee on Oversight and Government Reform, Criminal Justice Reform and Efforts to Reduce Recidivism, June 28, Amanda Coyne, House, Senate candidates meet in Greenville forum, The State, October 25, Nathan Deal, Georgia s story of redemption, The Washington Times, October 18, H.R. 3356, 115th Congress (2017) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

12 Each offender would be assessed for risk on an individual level to develop a comprehensive plan based on his or her need and probability of reoffending. Utilizing private public partnerships in this capacity would allow non-profit organizations, educational institutions, and private sector entities to build relationships and community for the most vulnerable citizens in our society. The bill would incentivize prisoners to reduce their risk of recidivism. For every 30 days of successfully completed recidivism reduction programming, prisoners will earn ten days of time credits. Those prisoners who are considered to have low or no risk of recidivism can earn an additional five days, for a total of 15 days, after two successful risk assessment periods. Certain categories of offenders including violent offenders, sex offenders, and terrorists would not be eligible to earn time credits. The Prison Reform and Redemption Act would allow great access to visitation and phone privileges, create a pilot program to address the heroin and opioid epidemic, and prohibit the restraint of pregnant offenders unless the offender poses a serious threat. The bill would require the Bureau of Prisons to collect statistical and demographic information to be provided to Congress on an annual basis. Major Justice Reform Legislation in the 115 th Congress (* FreedomWorks has released a letter of support for the bill) Bill Short Title Issue Sponsor H.R Juvenile Justice Reform Act Juvenile Justice Rep. Jason Lewis (R-Minn.) S. 860 Juvenile Justice and Delinquency Prevention Reauthorization Act Juvenile Justice Sen. Chuck Grassley (R-Iowa) H.R Prison Reform and Redemption Act* Corrections Rep. Doug Collins (R-Ga.) S Reclassification to Ensure Smarter and Equal Treatment Act* Reclassification Sen. Rand Paul (R-Ky.) S Reverse Mass Incarceration Act Sentencing Sen. Cory Booker (D-N.J.) S Sentencing Reform and Corrections Act* Sentencing/Corrections Sen. Chuck Grassley (R-Iowa) S Mens Rea Reform Act* Over-criminalization Sen. Orrin Hatch (R-Utah) S Smarter Sentencing Act Sentencing Sen. Mike Lee (R-Utah) TBD SAFE Justice Act Sentencing/Corrections Rep. Bobby Scott (D-Va.) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

13 The reintroduction of a similar corrections reform bill the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act is expected in the Senate. Sen. John Cornyn (R-Texas) will be the lead sponsor of the bill, partnering with Sen. Whitehouse. Sens. Cornyn and Whitehouse were the leads on the same bill in the previous Congress. 51 On the sentencing side of the issue, Rep. Bobby Scott (D-Va.) and Sen. Rand Paul (R- Ky.) introduced the Justice Safety Valve Act in the House 52 and Senate, 53 respectively. Although a safety valve exception to mandatory minimum sentences for certain nonviolent drug offenses is a key component of federal sentencing reform efforts, the Justice Safety Valve Act would provide exceptions to all federal mandatory minimum sentences. Separately, Sen. Paul has introduced Reclassification to Ensure Smarter and Equal Treatment (RESET) Act. The bill would limit the term of imprisonment and low-level, nonviolent offenses to a maximum of one year and a maximum fine of $1,000. The bill eliminates the 18-to-1 sentencing disparity between the sentences for crack cocaine (cocaine base) and powdered cocaine. Additionally, the bill allows the sentencing court, the Bureau of Prisons, or the offender to seek a reduction for any sentence amended by it. The RESET Act would also reinvest the budgetary savings into a new fund, the Safe Neighborhoods and Schools Fund. Dollars deposited into this fund would be dispersed to the Department of Education for a program to reduce truancy or support students who are victims of crime, the Federal Crime Victim Assistance Fund, and the federal reentry and drug court programs. Half of the dollars saved would be dedicated to reducing the national debt. Rep. Elijah Cummings (D-Md.) and Sen. Paul have also reintroduced the Record Expungement Designed to Enhance Employment (REDEEM) Act in the House 54 and Senate. 55 The bill allows for the sealing of federal conviction records for those convicted of nonviolent crimes. It would also permit the automatic expungement of nonviolent crimes committed by juvenile offenders before the age of 15 and the automatic sealing of records for these offenses either at the age of 18 or three years after the offense, whichever date occurs later. Elements of the REDEEM Act have been incorporated into Title II of the Sentencing Reform and Corrections Act. 51 S. 467, 114th Congress (2015) 52 H.R. 2435, 115th Congress (2017) 53 S. 1127, 115th Congress (2017) 54 H.R. 1906, 115th Congress (2017) 55 S. 827, 115th Congress (2017) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

14 Another important element of these efforts is criminal intent reform. Sen. Orrin Hatch (R- Utah) has introduced the Mens Rea Reform Act. 56 FreedomWorks Foundation covered this topic in a 2015 publication. 57 The bill would require the government to meet a default intent standard of proof beyond a reasonable doubt that the defendant acted willfully in order to obtain a conviction for offenses that do not already contain mens rea protections. It would not affect criminal statutes that have a strict liability standard. This effectively and necessarily defends the liberty of honest, innocent-minded Americans. Finally, the Sentencing Reform and Corrections Act is, as of October 2017, the main focal point of congressional action on these issues. With three facets front-end sentencing reform, back-end corrections reform, and commission creation to study the criminal justice system the Sentencing Reform and Corrections Act is a comprehensive solution to the myriad of problems marring the federal criminal justice system. The Sentencing Reform and Corrections Act would expand the federal safety valve exception for mandatory minimum sentences for low-level, nonviolent drug offenses, taking big government out of the courtroom and allowing latitude for sentencing in accordance with the facts of a case, instead of in accordance with outdated and overbroad federal law. This ensures that prison space and taxpayer dollars are used on offenders who pose a threat to society, not on those given decades-long sentences for low-level, nonviolent drug offenses. The controversial ACCA provision that was in the iteration of the bill introduced in the previous Congress, seeking to ensure the viability of ACCA if further challenged at the Supreme Court, has been removed. As well-intentioned and appropriate as this provision was, 58 it was easy for opponents to misconstrue. Similar to the Smarter Sentencing Act, the Sentencing Reform and Corrections Act would retroactively apply the Fair Sentencing Act, which reduced the obscene sentencing disparity between crack cocaine and powdered cocaine from 100-to-1 to 18- to-1, to certain currently incarcerated nonviolent offenders. The bill includes language requiring the Department of Justice to compile and make publicly available a list of all federal criminal statutes and regulations carrying criminal penalties, as well as any applicable criminal intent, or mens rea, standard. 56 S. 1902, 115th Congress (2017) 57 Jason Pye, The Over-criminalization Epidemic: The Need for a Guilty Mind Requirement in Federal Criminal Law, FreedomWorks Foundation, September 1, Jason Pye and Molly Gill, Issue Brief: The Case for Reforming 924(c) and ACCA, FreedomWorks, March 9, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

15 The bill includes vital corrections reforms by refocusing the use of limited federal resources to reduce recidivism rates. Lowering the likelihood of offenders who have completed their sentences to commit subsequent offenses is crucial to public safety, and to the effectiveness of our federal criminal justice system. The Sentencing Reform and Corrections Act would create individualized programs for prisoners, proven effective in states like Georgia and Texas, in reducing recidivism and promoting successful reentry into society. Some of the taxpayer dollars saved by these common-sense reforms would be used to establish a temporary National Criminal Justice Commission to ensure that the most effective reforms continue to be implemented and resources used wisely, not carelessly wasted. Not only does the Sentencing Reform and Corrections Act represent a new direction for federal criminal justice policy, requiring more accountability from offenders and incentives to reduce their risk of recidivism, it would also save money. The version of Sentencing Reform and Corrections Act marked up by the Senate Judiciary Committee during the 114th Congress would have saved $722 million over ten years. 59 There are several other bills with bipartisan support that have been introduced that reform federal sentencing and corrections laws or address other issues with the criminal justice system. These bills include the Better Drive Act 60 and Renew Act. 61 Although these bills have merit, it remains to be seen whether committees of jurisdiction will move them or whether they will be worked in as part of a larger package of bills. Finally, Reps. Bobby Scott (D-Va.) and Jason Lewis (R-Minn.) plan to reintroduce the SAFE Justice Act. 62 Rep. Jim Sensenbrenner (R-Mich.) was sponsored the bill in the 114th Congress. 63 As it was introduced in the 114th Congress, the SAFE Justice Act offered sweeping reforms. The bill addressed over-federalization of criminal law and over-criminalization in federal law. It focused on sentencing reforms, many of which reflected provisions in the Smarter Sentencing Act, by creating a second safety valve exception to mandatory minimums to include more low-level, nonviolent offenders with little to no criminal history. It provided eligibility for resentencing under the safety valve and made the provisions of the Fair Sentencing Act of 2010 retroactive. The bill included provisions designed to reduce repeat offender rates by creating risk reduction programs such as drug and mental health treatment, education, and work training for eligible inmates and back-end reentry programs. It required post- 59 Congressional Budget Office, S. 2123, Sentencing Reform and Corrections Act of 2015, May 17, H.R. 1952, 115th Congress (2017) 61 H.R. 2617, 115th Congress (2017) 62 Dear Colleague, Co-sponsor the SAFE Justice Act, October 18, H.R. 2944, 114th Congress (2015) FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)

16 sentencing risk assessments of eligible offenders and allows offenders to earn time credits upon the completion of risk reduction programs. FreedomWorks plans to support the SAFE Justice Act upon reintroduction. Juvenile Justice Reform in the 115th Congress Much like other justice reform legislation, the reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 stalled during the 114th Congress. The House passed their version of reauthorization 64 by a large margin. 65 Unfortunately, the Senate version 66 stalled because of objections raised by Sen. Tom Cotton (R-Ark.). 67 Sen. Cotton successfully blocked the bill 68 over the proposed phase out of valid court orders (VCO) for juveniles who commit status offenses. These are actions such as curfew violations, truancy, and tobacco use that are considered offenses only because of the person's status as a minor. The issue was given new life earlier this year in the new Congress. The House passed the Juvenile Justice Reform Act 69 by voice vote. The House version of JJDPA reauthorization includes a phase out of the VCO exemption. The Senate version, 70 however, continued to face hurdles, as Sen. Cotton s blocked the bill until the phase out of the VCO exemption was removed. 71 Truancy, runaway, liquor law violations, and curfew violations accounted for 79 percent of status offenses in Sen. Cotton, who infamously and strangely said that the United States has an underincarceration problem, 73 claimed that Arkansas has one of the highest VCO use rates in the country. The use of VCOs in Arkansas has been in decline. 74 The phase out of the VCO exemption was removed and Sen. Cotton lifted his hold on the bill, which subsequently passed the Senate by unanimous consent. There is still an opportunity to address the concerns about the use of VCOs in conference between the House Education and Workforce Committee and the Senate Judiciary Committee. Sens. Paul and Bob Casey (D-Pa.) are working to ensure that the phase out is included in the final text. It is unclear, however, whether the phase out of the VCO exemption will be in the final product, or when a final product will emerge. 64 H.R. 5963, 114th Congress (2016) 65 Roll Call Vote 552, 114th Congress (2016) 66 S. 1169, 114th Congress (2016) 67 Jason Dick, Tense Floor Exchange Blocks Juvenile Justice Bill, Roll Call, February 11, Max Brantley, Bipartisan juvenile justice reform bill has one problem in Congress: Tom Cotton, Arkansas Times, September 26, H.R. 1809, 115th Congress (2017) 70 S. 860, 115th Congress (2017) 71 Vidhya Ananthakrishnan, Closing a loophole that keeps kids locked up, The Hill, May 12, Annie Salsich and Jennifer Trone, From Courts to Communities: The Right Response to Truancy, Running Away, and Other Status Offenses, Vera Institute of Justice, December Hudson Institute, Senator Tom Cotton's Remarks on Crime and Justice in America, May 19, Arthur Rizer and Jonathan Matt, Tom Cotton Lone Holdout on Juvenile Justice Reform Bill, Real Clear Politics, July 15, FreedomWorks 400 North Capitol Street NW Suite 765 Washington, DC (888)