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The Criminal-Justice Reform Bill Is Both Historic and Disappointing

It will make a real difference in Americans' lives, but fails to correct decades of overly punitive policies.

Alex Wong/Getty Images

Congress is on the brink of a first for the Trump era: the passage of a major piece of bipartisan legislation. It may also be the last.

Lawmakers have wrangled for five years over criminal-justice reform, but after months of recalcitrance, Senate Majority Leader Mitch McConnell announced on Tuesday that he would allow a floor vote on Congress’ latest effort, the First Step Act. The Kentucky Republican had appeared sympathetic to hardline opponents like Arkansas Senator Tom Cotton, but ultimately relented in the face of the bill’s broad support.

How broad? The First Step Act is supported by President Donald Trump, who enthusiastically campaigned on tough-on-crime policies, and the American Civil Liberties Union, which is waging a legal war against his administration. A coalition of prominent conservative and religious organizations also backed the legislation, as well as some high-profile law-enforcement groups. So have some liberal organizations, though many progressives have mixed feelings about the bill. The House passed a version of it in May in a 360-59 vote.

This unusual coalition is one of many reasons why the First Step Act might be the strangest piece of legislation in the Trump era. It’s both groundbreaking and meager, both heartening and disappointing—a long-overdue retreat from decades of inhumane policy, but also an insufficiently small step toward a more conscientious approach to crime and punishment.

One of the bill’s central provisions expands what’s known as the “safety valve,” which allows federal judges to ignore mandatory minimums in sentencing defendants who commit nonviolent, low-level crimes. Another provision reworks the three-strikes requirement for drug-related felonies: Instead of a life sentence, someone sentenced under it would receive only 25 years in prison. Modest though these changes are, they would not apply retroactively.

The bill’s reforms for already incarcerated people are slightly more forceful. One provision would allow eligible federal prisoners to claim an extra seven days of credit for good behavior each year. This change would apply retroactively, bringing thousands of current inmates even closer to release. The First Step Act would also continue a program established in 2007 to help move elderly and terminally ill prisoners into home confinement. It would also require the Bureau of Prisons to tabulate how many prisoners are granted compassionate release, so lawmakers can insure the agency isn’t refusing to apply it.

Liberals may find some of the central provisions to be insufficient to the overall challenge of mass incarceration. Part of this can be attributed to the federal government’s modest role in criminal justice; the overwhelming majority of American prisoners are tried, sentenced, and incarcerated by the states. That should not diminish the bill’s potential impact for each individual person it would help. Families Against Mandatory Minimums, a nonprofit organization that advocates for sentencing and prison reforms, estimated in November that the First Step Act would affect 183,000 federal prisoners.

The First Step Act also avoids some of the pitfalls that limited progressive support for previous attempts at compromise legislation. For instance, conservative groups and Republican senators had previously argued in favor of imposing a default requirement for federal prosecutors to prove a defendant acted with criminal intent, or mens rea. But key Democratic senators strongly resisted the proposal, fearing that it would be used by corporations to evade punishment for environmental and regulatory crimes, and refused to vote for a bill that included it. The battle over mens-rea reform ultimately contributed to the failure of a criminal-justice reform package in 2016.

Other portions of the bill will give force to long-overdue reforms. The Bureau of Prisons would be required to provide female prisoners with sanitary supplies like tampons, free of charge. Prison officials would be forbidden from using restraints on pregnant women before, during, and shortly after they give birth. Prisoners classified as “lower risk” would be required to be placed in a form of home confinement. Those who are released would be given their birth certificate and a photo ID upon release. In his analysis of the bill, the Marshall Project’s Justin George noted that many of these provisions are already required under policies that the Bureau of Prisons has been slow or reluctant to implement.

There will always be tough-on-crime politicians like Cotton who push for a maximally punitive system. One of the more heartening aspects of the First Step Act, however, is how vociferously many conservatives have countered Cotton’s claims. In a November op-ed in National Review, Cotton resorted to familiar tropes by arguing the bill would let government bureaucrats and liberal judges release violent felons into American communities. Utah Senator Mike Lee, one of the Senate’s key figures on criminal-justice reform, wrote an op-ed that dismantled his claims point-by-point. He also challenged Cotton on ideological grounds. “Conservatives have a rich history as a reformers,” he argued.

Other conservatives joined in the pushback. Newt Gingrich lambasted the “lock-’em-up-and-throw-away-the-key crowd” for trying to stop the bill that he portrayed as long overdue. “Some of the repairs are needed, frankly, because of well-intentioned but misguided crime-prevention efforts that I backed as a Republican leader in Congress during the 1990s,” he wrote in The Washington Post. Fox Broadcasting Company, the Rupert Murdoch–owned corporation that controls Fox News Channel, also publicly endorsed the bill, giving it a degree of institutional cover from conservative media outlets. Trump’s own endorsement last month also gave cover to Republican lawmakers who feared that supporting it could be used against them in future elections.

The Republican Party’s willingness to embrace criminal-justice reform of any kind, especially under Trump, is encouraging. Many states have passed more ambitious reforms, and Democrats have strong proposals to go even further in alleviating the nation’s problems with mass incarceration and over-criminalization. But the First Step Act may be the best that Congress can accomplish, for now. The lame-duck session ends in a matter of weeks, and so does the Republicans’ unified control of government. When Democrats take over the House, launching all manner of investigations into the Trump administration, the ensuing acrimony may leave little room for even modest bipartisan reforms. Enjoy this moment while it lasts.