The week before Christmas was pretty messy in and around the White House. President Trump seemed to first avert, then embrace a government shutdown. The political landscape trembled at the subterranean drilling for information by Special Counsel Robert Mueller. Incoming Democrats who will control the House of Representatives talked to all forms of media about the subpoenas they anticipate sending to the Trump administration. Secretary of Defense James Mattis was ousted, and the president decided, to broad resistance, that he was pulling American troops out of Syria. Reporters trying to get home for the holidays were stuck at work as breaking news reports stacked up on top of one another.
Amid all of this, something good slipped into the mix. A truly bipartisan bill, the First Step Act, was passed by the Senate 87-12, raced through House reconciliation and was promptly signed by the president as an odd but grateful mix of people looked on. Fiercely conservative Republican Sen. Mike Lee spoke briefly, noting with some incredulity that through working on this bill he was now “texting buddies” with social entrepreneur and onetime Obama adviser Van Jones.
The new law does a lot of things, none of them earth-shattering. Much of it is devoted to creating a new system of risk-assessment for prisoners, to better inform release decisions and eligibility for programming. This was controversial with some lawmakers — data sets too often incorporate existing biases — but allowed other members of the House and Senate to trust a provision in the law that allows some federal prisoners to earn an earlier release if they succeed in programs dedicated to success on the outside.
It also imposed some reasonable regulations on the U.S. Bureau of Prisons, with appropriate exceptions. For example, it bars the shackling of pregnant prisoners and promotes the location of prisoners within 500 miles of home.
Senate Majority Whip John Cornyn, Texas Republican, touted these reforms as federalism in action with individual states offering good ideas for the federal government to employ as well: “The foundation of this legislation is based on the successful prison reform efforts in states like Texas, Georgia, Rhode Island and other places where we finally realized that being smart on crime is more important than just being tough on crime. And by that, I mean that people who go to prison get out of prison, and the question is: Are they going to be better prepared than when they went in, when they come out to meet the challenges of living a lawful, orderly life?”
It is the sentencing provisions in the bill that matter most to me (and which I advocated for most enthusiastically). In 2009, Baylor Law School student Dustin Benham and I won a case in the U.S. Supreme Court where the high court declared that sentencing judges could “categorically” reject a provision in the U.S. Sentencing Guidelines that established a 100/1 ratio for powder and crack cocaine and thus mandated the same sentence for 500 grams of powder cocaine or just five grams a crack. That particular provision drove racial disparities in federal sentences that were obvious even to former federal prosecutors like me and Sen. Mike Lee.
In 2010, Congress amended that ratio to 18/1 in both guideline and statute but timidly declined to make the change retroactive. That meant that thousands of people sentenced under the old 100/1 rule stayed in prison. The First Step Act finally rectifies that, making those people eligible for new sentences under the 2010 reform.
These fixes are a hodgepodge and fall far short of what may be needed to seriously reduce the prison population while maintaining safety. And yet they reflect a broader trend that is truly remarkable. For decades, federal criminal law only moved in the direction of longer sentences and tighter restrictions, even as states including Texas pursued reforms that freed prisoners, saved money and maintained historically low crime rates.
During those years, I often described the legislative approach to federal sentencing as a one-way ratchet: sentences could go up but never go down. That ratchet seems to have finally been removed. In its place is something better. The bipartisan group of fiscal conservatives, evangelicals, civil rights activists and sentencing experts who pushed the First Step Act do not want to throw open the gates of prisons. Rather, they want there to be both punishment and redemption where it can be had.
The First Step Act was just a media blip in that tumultuous week before Christmas, but it should give us hope beyond the realm of federal sentencing. Even when things are most chaotic, when our political system is at its seeming worst, the gears can still work. Common interests can be identified across party lines and compromise is still, somehow, possible even in the halls of Congress.
With an incoming divided government, we can hope that they see this path as one that can lead to political success in a way more satisfying than the cycle of debate and destroy that we have seen far too much of from members of both parties. We need to tell our representatives that we want more roses and fewer thorns.