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Right on Crime | August 22, 2018
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Dear Mr. President:
We write to thank you for your support of the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act, H.R. 5682. Without the support of you and your White House, the FIRST STEP Act may not have passed the U.S. House of Representatives.
Achieving Today Where Past Policymakers Have Failed
Over the past several years, policymakers on both sides of the political aisle and in both chambers have spoken of the need to fix our criminal justice system. Indeed, your predecessor made an effort – albeit a half-hearted one – towards the end of his Administration. No one, however, has been able to actually achieve anything of substance since enactment of the Second Chance Act a decade ago.
Yet today, we are on the brink of passing historic legislation that will improve public safety, reduce costs and enhance human dignity. And that is a testament to your leadership and the hard work of your White House team.
Conservatives Support Criminal Justice and Prison Reforms
The conservative vision for criminal justice reform focuses on three key areas:
• Making our communities safer again;
• Using taxpayer dollars more wisely; and
• Recognizing that each human life has value and is entitled to basic dignity.
With these as our guide stars, conservatives have pursued criminal justice reforms at the state level for more than a decade, beginning in Texas in 2007. The principles refined in Texas have been applied in other Republican strongholds such as Georgia, South Carolina, and Mississippi and in more than thirty other states.1 Since 2010, jurisdictions that have implemented reforms like those first developed in Texas have reported savings or averted costs of $1.1 billion.(2)
Moreover, between 2008 and 2016, thirty-five states saw reductions in crime and imprisonment rates, twenty-one of which saw double digit declines.(3)
We point out the successes in the states because many of the same principles are included in the FIRST STEP Act and have been proven to cut crime while reducing spending.
Beyond the fiscal implications, criminal justice reform resonates with people of faith. As you know from your recent meeting with urban pastors, prison and justice reforms have taken on a deeper meeting for those who believe in second chances and redemption. The FIRST STEP Act supports these concepts by encouraging those who have made mistakes to use their time in prison to reform themselves. Ninety-five percent of all federal inmates will eventually return
home. When they do, we want them to be better versions of themselves.
The Importance of Sentencing Reforms
As you know, the Senate is considering adding sentencing reforms to the FIRST STEP Act. The sentencing reforms under consideration are designed to ensure that each punishment fits the crime and that taxpayer dollars are not wasted locking up people who pose no threat to public safety. In fact, smarter sentencing laws such as those offered under the proposed changes to the FIRST STEP Act refocus resources on those who most threaten our communities. In doing so, we must ensure that we are sending the right people to our prisons for the right amount of time, with the resources available to rehabilitate those capable of change.
Mr. President, you have already done more than your predecessor was able to legislatively by taking the reins on justice reform and supporting the FIRST STEP Act through its passage in the House. Now, you have the opportunity to guide this bipartisan legislation through the Senate, helping to define your legacy and to enhance public safety by holding offenders accountable, allowing them to participate in programs that will reduce their risk of reoffending.
We are now in a critical moment. The FIRST STEP Act is awaiting action in the Senate. It is unlikely that the bill will move forward without the addition of very modest sentencing reforms. We are aware that there are some in your administration and elsewhere who are working against this domestic policy priority of your White House. We would like to correct the record on several of these public statements:
1. Recidivism Can’t Be Fixed, So Why Even Try?
In 2007, Texas became the first state to launch comprehensive, evidence-based prison reform. Today, more than 30 states have implemented similar reforms, including Georgia and South Carolina. As measured by reconviction, Texas has a recidivism rate of 21 percent among prisoners released in 2013.(4) South Carolina’s recidivism rate among prisoners released in 2013, as measured by reconviction, is 23.1 percent.(5) Georgia’s recidivism rate among prisoners released in 2014, as measured by reconviction, is 27.3 percent.(6)
The Pew Charitable Trusts released a report finding that the recidivism rate among prisoners released in 2012 declined by 23 percent(7):
Among prisoners released in 2005, 48 percent returned to prison by the end of 2008. By comparison, among those released in those states in 2012, 37 percent had at least one new prison admission by the end of 2015. That translates into a drop of 23 percent. The states included in the analysis accounted for about two-thirds of those released from state prisons nationwide each year.
Because the data are limited to prisoners released in 2005, the data released by the Bureau of Justice Statistics masks lower recidivism rates in later years. The Pew Charitable Trust’s analysis puts recidivism into perspective, showing that the criminal justice reform efforts in the states have seen success.
2. Impact of Good Time and Earned Time Credits
Critics of the legislation also argue that the earned time credits and good time credits available under the FIRST STEP Act would erode existing truth-in-sentencing laws(8) and allow offenders to serve too little time of their prison sentence, threatening public safety.
a. Good Time Credits
The only portion of the FIRST STEP Act that would affect the amount of time offenders spend in BOP custody is the restoration of congressional intent to good time credits. More than three decades ago, Congress authorized a standard reduction in prison sentences for good behavior.
Specifically, the governing statute grants 54 days of “good time credit” (approximately 15 percent of the sentence) for each year of incarceration. However, the Bureau of Prisons calculates good time credit to equate to 47 days per year, or approximately 13 percent.
No one truly believes that the additional seven days of good time credit Congress already authorized makes any difference in whether someone will re-offend or not.
The individuals who would qualify for these reductions are model prisoners who have “displayed exemplary compliance with institutional disciplinary regulations,” as determined by BOP itself. They are offenders who pose the absolute least threat to society and have the least chance of reoffending.
b. Earned Time Credits
The FIRST STEP Act envisions a system where prisoners can work their way down to low security classifications. To encourage self-improvement, the bill would authorize “earned time credits.” These credits would allow the lowest risk offenders more time in halfway houses or home confinement. Regardless of where prisoners serve their sentences – be it at a BOP prison, in a halfway house, or on home confinement, they remain in the custody of the government.
Instead of threatening public safety, such a change would likely enhance public safety by giving those least-likely to offend ample time to reintegrate properly into society. The time spent in transitional housing allows for offenders to access further educational opportunities, secure permanent housing, and find jobs.(9)
3. Limited Changes to Current Sentencing Laws
It is sound policy to ensure that the sentences handed down by judges for individuals to serve are appropriate for the crime committed. Although the FIRST STEP Act, as passed by the House, did not contain any sentencing provisions, adding such language to the bill in the Senate is seen as a key to passage. Critics of sentencing reform argue that mandatory minimum sentences were critical to the decline in violent crime rates that began in the early 1990s.
Mr. President, there is little evidence to back up this claim. University of Texas at Austin law professor William Spelman has estimated that incarceration is responsible for 27 to 35 percent of the decline in violent crime.(10) Taking this at face value, Mr. Spelman’s estimate means that 65 to 73 percent of the decrease in violent crime came from other factors.
The available literature illustrates that while broad sentencing increases likely provided some public safety benefit when originally enacted, they reached a point of diminishing returns. The National Research Council of the National Academies noted, “[T]hree reports of panels convened by the National Research Council 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.”(11) The amendments that have been suggested do not do away with mandatory minimum sentences, rather they allow deviation from the prescribed scheme in very limited circumstances.
4. Impact on Illegal Immigrants
Critics have complained that because the FIRST STEP Act places an emphasis on home confinement for prisoners at minimal risk or low-risk of reoffending that deportable immigrants in the prison system would be placed into home confinement. This is flatly untrue.
Although deportable immigrants in the federal prison system will be offered the opportunity to take part in programming under the FIRST STEP Act, they cannot earn time credits for placement in pre-release custody, including home confinement.12 Additionally, if a deportable immigrant is subject to a detainer13 filed by Immigration and Customs Enforcement, he or she would not be eligible for placement in home confinement and would be transferred into ICE
A separate regulation, BOP Program Statement 7310.04, makes it clear that “detainee inmates” – that is, a prisoner subject to a detainer – are not eligible for and are excluded from placement in “community corrections centers,” i.e., halfway houses.14 Other limitations, including a limitation on “[i]nmates who are assigned a ‘Deportable Alien’ Public Safety Factor,” also apply under BOP Program Statement 7320.01, CN-2, which excludes inmates with public safety
factors from placement in home confinement.15
Put concisely, there is little substance behind any of the claims made against the FIRST STEP Act and the potential sentencing reforms currently under discussion. When one digs slightly beneath the surface, it is clear to see that data and facts back up the policy presented for consideration in the Senate.
Criminal justice reform has been a winning issue for conservatives on the state level. The FIRST STEP Act is your opportunity to lead Republicans to a win on the federal level by implementing conservative reforms that have proven themselves effective at cutting recidivism and improving safety in our neighborhoods.
Mr. President, the time for fixing our broken system is now, and conservatives are fully behind you.
Former United States Senator
Former Arkansas Governor
Former United States Congressman
Former Maryland Governor
Freedom Partners Chamber of Commerce
Deborah J. Daniels
Former U.S. Attorney
Former U.S. Assistant Attorney General
American Conservative Union
American Conservative Union Foundation*
The Heritage Foundation*
Americans for Tax Reform
Americans for Prosperity
Former Ohio Secretary of State
Right on Crime
Former New York Police Commissioner
Former Chairman, Texas House Committee on Corrections
L. Brent Bozell, III
Media Research Center*
Donald J. Devine
Former Dir. Of USOPM (Pres. Reagan Admin.)
The Fund for American Studies
Council for National Policy
Faith & Freedom Coalition
Former US Attorney
Former Chief Counsel for Crime & Terrorism, US Senate Judiciary Committee
Institute for Policy Innovation
The Buckeye Institute*
Investor & Philanthropist
Texas Public Policy Foundation
*Titles and names of organizations are included for identification purposes only
1 It should be noted that since FY2010, Congress has encouraged our approach through an annual appropriation for the “Justice
Reinvestment Initiative” administered by the Bureau of Justice Assistance.
2 Samantha Harvell, Jeremy Welsh-Loveman, and Hanna Love, Reforming Sentencing and Corrections Policy: The Experience of Justice Reinvestment Initiative States, Urban Institute, December 2016 https://www.urban.org/sites/default/files/publication/86691/reforming_sentencing_and_corrections_policy_final.pdf
3 Adam Gelb and Jacob Denney, “National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms,” The Pew Charitable Trusts, January 16, 2018 http://www.pewtrusts.org/en/research-and analysis/articles/2018/01/16/national-prison-ratecontinues-to-decline-amid-sentencing-re-entry-reforms
4 Texas Legislative Budget Board, Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, January 2017
5 South Carolina Department of Corrections, South Carolina Department of Corrections Recidivism Rates of Inmates Released during FY2009 – FY2013, Accessed August 20, 2018
6 Georgia Council on Criminal Justice Reform, Report of the Georgia Council on Criminal Justice Reform, February 2018
7 The Pew Charitable Trusts, “The Changing State of Recidivism: Fewer People Going Back to Prison,” August 1, 2018
8 Truth-in-sentencing policy historically requires that inmates serve no less than 85 percent of their full sentence in Bureau of Prisons (BOP) custody.
9 Studies have pointed to post-incarceration employment as the number one predictor of recidivism, proving the case for the necessity of aiding prisoner reentry into society. Indianapolis-Marion County City-County Council, “Re-Entry Policy Study Commission Report,” July 2013 http://www.indy.gov/eGov/Council/Committees/Documents/RE-ENTRY/Reentry%
10 William Spelman, “The Limited Importance of Prison Expansion,” Cambridge University Press, 2005
11 National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences, The
National Academies Press, 2014 http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
12 Taylor Millard, “No, The House-Passed FIRST STEP Act Won’t Release Criminal Aliens from Prison,” June 17, 2018
13 Detainers are defined in BOP Program Statement 5800.15 as: “A formal request from a Federal, state, or local jurisdiction for an
inmate’s custody upon completion of a term of imprisonment.” This definition includes requests for criminal and non-criminal charges
(e.g., material witnesses, deportation, probation/parole violator warrants, child support, etc.).” A federal agency such as ICE would
be given priority over state or local detainers. U.S. Department of Justice Federal Bureau of Prisons, “Program Statement 5800.15,”
September 23, 2016 https://www.bop.gov/policy/progstat/5800_015_CN-01.pdf
14 U.S. Department of Justice Federal Bureau of Prisons, “Program Statement 7310.04,” December 16, 1998
15 U.S. Department of Justice Federal Bureau of Prisons, “Program Statement 7320.01,” December 15, 2017