With Meghna Chakrabarti
President Trump throws his support behind a rewrite of federal sentencing laws. What’s brought us to this point where politicians from both sides of the aisle are pushing for criminal justice reform?
Ojmarrh Mitchell, criminologist and associate professor at the University of South Florida.
Shon Hopwood, jailhouse lawyer turned associate professor at Georgetown Law School. He learned to write briefs for other prisoners while serving almost 11 years in federal prison for bank robberies. Author of "Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption." (@shonhopwood)
Nancy Gertner, retired Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. (@ngertner)
On the impact the First Step Act would make
Ojmarrh Mitchell: "It would make a large symbolic difference, but substantively it only affects a relatively small number of convicted offenders. Even among the federal prisoners, a lot of them won't be affected. The proposed legislation rules out violent offenders, those convicted of illegal entry, which 50 percent of the current federal prison population, and some drug offenders like those involved in trafficking fentanyl."
Shon Hopwood: "I would agree to a certain extent on the sentencing provisions, because First Step only really goes after the four worst categories of mandatory minimum sentencing provisions and leaves the rest in place. I disagree on the prison reform side, though. I think almost everyone in federal prison will benefit in some way from this bill. The 'good time' provision which creates — additional good time applies to everyone who has a release date. The bill would force the Federal Bureau of Prisons to put meaningful rehabilitation programs into the federal prison and it would incentivize some of the people who successfully complete those programs to be released early on to home confinement and halfway houses rather than serving out their sentences in a federal prison. And it has some other unique provision, like ends the shackling of women during child birth and makes it easier for people who are terminally ill to get out prison and spend their dying days with their families."
On the changing attitudes of federal and state governments toward incarceration
OM: "Still to this day, most of the war on drugs and tough on crime movement, those policies are still on the books. So this is a really important change, but when you look at the absolute length of these sentences, they're going from 20 years to 15 years, 25 to 20 years — they're still really long and disproportionate when you consider what happens at the state level.
"At the state level, when the offense align — a lot of federal crimes aren't state crimes and vice versa — but when you look at things that are common crimes in both systems, what you see is the states have much less severe punishments for the same crimes than the federal system."
SH: "If we had a bill that released all 180,000 federal prisoners tomorrow, the United States would still lead the world in incarcerating its citizens. So the federal system is one of 51 systems. I think where this bill is encouraging is that in my 43 years of life, the U.S. Congress has passed three reform bills that made the system better and not worse. This would be the fourth in 43 years, and it's significantly better than anything Congress has ever thought about passing before. And so, the hope is, this will be just a first step to get some forward momentum in the federal system for the first time in decades, and hopefully there will be more reforms on the horizon."
"It was clear that what I was doing was wrong. In other words, if you have someone who is illiterate at 40, giving him a 15- or 10-year sentence doesn't do anything to address that."Nancy Gertner
On what it was like being a judge and navigating mandatory minimums and federal sentencing guidelines
Nancy Gertner: "I was on the bench for 17 years, I sentenced hundreds and hundreds of mostly young, African-American men to sentences which I believed then and believe now, 80 percent of which were unjust, disproportionate and unfair. So what does it feel like? It felt — I mean, it was horrendous, because you knew that what you were doing was wrong. And the most that you could do would be to try to mitigate the harsh effects of the mandatory sentencing when you could, and write about it, and scream about it when you could not do anything.
"For example, one person that I'm writing about now was, when he was 14, his parents were dealing crack, were kicked out of their house, the kids were on the street. He started to deal crack, essentially to get school supplies for his siblings, not to buy a fancy car, not to tool around as a major drug dealer — the kind of people that President Clinton was talking about was not the people I was sentencing — and he wound up with a mandatory sentencing of 10 years. The police would hang on the block and watch him multiple times until the quantities hit a mandatory minimum quantity, and that's what he got. There was nothing I could do but rail about it."
On reforming sentencing
NG: "We know more than we did in 1995 about addiction. A vast majority of the people that I sentenced had impairments because of drug addiction. We know about it. We know how to intervene, we know how to do something about that. We know how to do something about mental health issues. Sometimes it was a question, actually, in going back over the people I sentenced, sometimes it was an issue not just of whether I knew what to do, but it was clear that what I was doing was wrong. In other words, if you have someone who is illiterate at 40, giving him a 15- or 10-year sentence doesn't do anything to address that. In other words, you didn't need 15 or 20 years to teach him to read. In fact, what we were doing in these kind of sentences, which the First Step Act only ameliorates to a limited degree, what you've done is made it even harder for them to re-integrate — even longer away from their families, even longer periods of time outside of any economic system, longer periods of time outside of any school system. I know what not to do, and I could see that over 17 years. I now have some sense of what to do with respect to mental health and addiction and some of the issues of youthful offenders, and that's what we ought to work on."
From The Reading List
The Hill: "Trump’s backing may not be enough on criminal justice reform" — "President Trump’s support for a criminal justice reform bill might not be enough to get the legislation through the Senate, where it faces vocal opposition from conservatives and has won lukewarm support at best from GOP leaders.
"Trump held a White House event on the issue Wednesday in a public showing that gives the legislation real momentum.
"Yet in a Senate where there is deep-rooted opposition to the bill among conservatives, and where lawmakers are running out of time, Trump’s support might not make the difference."
NBC News: "Criminal justice reform finally has a chance in Congress. Here's what the First Step Act would do." — "President Donald Trump’s support has put Congress within reach of passing the most sweeping set of changes to the federal criminal justice system since the 1990s, when fear of crime drove the enactment of draconian sentencing practices that shipped hundreds of thousands of drug offenders to prison.
"This is no small feat. Reformers have been trying to get this done for years, but something always got in the way: partisan bickering, election-year politics, ambushes by opponents. Amid Washington gridlock, the First Step Act stands out.
"The measure, which could go to a vote during the lame-duck session of Congress between now and January, contains several changes to the way the federal government treats drug offenders, both those who are in prison now and those who will face a judge in the future."
New York Times: "Opinion: A Real Chance at Criminal Justice Reform" — "Perhaps it’s a coincidence that a new criminal justice reform proposal has emerged in the Senate less than a week after the departure of Attorney General Jeff Sessions.
"But Mr. Sessions — a devout reactionary on matters of criminal justice — never met a reform effort he didn’t want to smother. As a senator, he fought against comprehensive overhaul like the Sentencing Reform and Corrections Act. As attorney general, he pursued hard-line policies stuck in the 1980s, especially when it came to low-level drug offenses. Reform advocates speak of him with the same level of affection as gun-control advocates do Wayne LaPierre, the National Rifle Association’s longtime frontman.
"And now that Mr. Sessions is gone, a bipartisan collection of senators is pushing a plan that addresses some of the core shortcomings of an earlier House version of the legislation that was supported by the White House. The hope is to move the bill during the lame duck session, before the chaos of the new Congress, with its newly Democratic House majority, takes hold in January."
This article was originally published on November 19, 2018.
This program aired on November 19, 2018.