| 3.23.22

Can Criminal Justice Reforms Help Reduce the Size and Cost of Federal Prisons? (H.R. 2944)

Do you support or oppose this bill?

What is H.R. 2944?

(Updated January 28, 2020)

This bill would apply state-level criminal justice reforms to the federal criminal justice system — aiming to safely reduce both the size and cost of the corrections system, namely for federal prisons. From the :

"Their bill would sentence most first-time, low-level, nonviolent drug offenders to probation rather than prison; give judges more discretion to grant leniency; create alternatives to prison, like drug-treatment and mental-health programs; reward prison contractors for reducing recidivism; largely end federal prosecution of simple drug possession; and confine mandatory-minimum sentences to high-level traffickers."

This is a hefty bill with reforms that touch many parts of the criminal justice system. Here are some highlights:

Reducing What Counts As "Crime"

The bill explicitly goes after "overcriminalization" — through a number of policies that hope to increase transparency and flexibility, and by eliminating federal criminal penalties for simple drug possession in state jurisdictions. Overcriminalization in this context is the belief that the U.S. turns too often to the criminal justice system to resolve wrongs, grievances and disputes — criminalizing behavior that should be addressed in other ways. The Justice Fellowship notes:

In addition to the near 4,500 statutory federal crimes, there are estimated to be between 100,000–300,000 federal regulations that may carry criminal penalties. Many of these laws make every day innocent actions subject to criminal prosecution. This derails a fundamental principle in criminal law: actus non facit reum nisi mens sit rea — the act itself does not make one a criminal unless done with criminal intent.

Under this bill, victims of overcriminalization could contact the Dept. of Justice’s (DOJ) inspector general to seek relief.

Sentencing & Drug Convictions

Eligibility for sentencing alternatives — like pre-judgment probation — under this bill would be expanded to more low-level offenders. Judicial districts would be encouraged to open special courts for drug crimes, veterans, and mental health issues. Drug trafficking offenders who provide significant assistance to the government would have increased access to a ‘safety valve’ that allows them to avoid mandatory minimum sentences for their crimes.

Life sentences would only be handed down for drug trafficking in the most egregious cases.

Judges would get to set the extent to which criminal conduct resulting from law enforcement “sting” operations could be considered in court. To protect against wrongful convictions, the Dept. of Justice (DOJ) would adopt an “open file” discovery policy, allowing defendants and their representation to access investigative case files in their entirety.

Post-Conviction

Congress would be directed to establish procedures for evaluating the risk posed by people convicted of crimes in order to maximize the amount of prison space used to house violent and career criminals. The role that an offender plays in a drug offense would be considered, and higher-level traffickers would be targeted with mandatory-minimums and resources to combat recidivism.

Eligible offenders could petition for re-sentencing under the revised trafficking laws, and compassionate release programs for lower-risk geriatric and terminally-ill offenders would be expanded.

Time in Prison

Prison personnel would receive training in mental health and de-escalation techniques to temper violent and dangerous situations in the correctional system.

Earned time would be expanded to encourage more inmates to participate in individualized recidivism reduction programs. Offenders who are on probation or under post-prison supervision would subject to swift, definitive, and escalating punishments for re-offending, while those who are compliant would receive credits.

After Prison

Halfway houses would be subject to mandatory performance-based contracting, so that unsuccessful halfway homes would be less likely to receive future funding.

All future sentencing and corrections bills would be required to be accompanied by fiscal impact statements. For courts, all pre-sentencing reports must include sentencing cost analyses. The U.S. Sentencing Commission would be expanded to include a non-voting federal defender representative.

Congress would get to change the definition of “good time credit” as it is used in sentencing — i.e. how sentences are reduced for prisoners who exhibit "good behavior" while in prison. Federal agencies that work in criminal justice would have to report on the population of the correctional system and recidivism rates. The Innocence Protection Act would be reauthorized, and the Attorney General would have to develop best practices to reduce wrongful convictions.

Argument in favor

By focusing on violent and career criminals, the reforms in this bill would limit the size and cost of the federal prison system — without undermining public safety. Overcriminalization is rampant across the country, alternatives to lengthy sentences are a concrete way to reduce prison populations.

Argument opposed

Reforming the federal prison system by following states is shortsighted — plenty of states haven’t enacted any prison reforms of their own. Not to mention this bill's disregard for criminal behavior. Drug offenders and other "low level" offenders have still committed crimes and need to be punished.

Impact

Prisoners who could be eligible for resentencing based on new guidelines, participate in recidivism reduction programs, or earned time programs; future offenders who could receive more lenient or severe sentences based on the severity of their crime, workers in the correctional system, judges, and the DOJ.

Cost of H.R. 2944

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Jim Sensenbrenner (R-WI) the lead sponsor of this legislation — lamented the status of the U.S. criminal justice system, and Congress’ inaction on implementing reforms:

“We cannot allow our criminal justice system to remain on its current trajectory. It’s not only fiscally unsustainable, but morally irresponsible. The states have been outperforming Congress on criminal justice reform for years, so todays introduction of the SAFE Justice Act is a major step forward in implementing effective, meaningful reform on the federal level that will enact fairness in sentencing, reduce the taxpayer burden, and ensure the increased safety and prosperity of communities across the country.”

In a summary prepared by the bill’s sponsors, they note that their legislation incorporates several lessons learned through state-level criminal justice reforms, including:

Swift and certain responses — whether rewards or punishments — are more effective in helping offenders reform their behavior than unpredictable or delayed responses.
Earned time policies for inmates and compliance credits for offenders on probation or post-release supervision can lower costs and reduce recidivism. It accomplishes this through accelerated release times and shifting correctional costs to offenders that continue to break laws.
Severe sentences and mandatory minimums for mid-level drug offenders (like dealers and distributors) is less effective than reserving those punishments for the high-level drug offenders due to the “replacement effect” of new recruits replacing incarcerated mid-level dealers.
Sending lower-level offenders to drug and mental health courts, treatment programs, and intensive supervision holds them accountable and reduces recidivism. Alternatively, sentencing low-level offenders to prison heightens recidivism by disrupting the social fabric within their families and communities.
Age is a significant predictor of criminality, and imprisoning offenders into their 50s, 60s, and 70s provides diminishing returns for public safety. Utilizing targeted geriatric release programs ensures that heinous offenders remain incarcerated, while offenders who pose a lesser risk can be shifted out of the prison system to reduce costs without posing a substantial threat to the public.

This bill has robust bipartisan support, with 18 Democrats and 17 Republicans having signed on as cosponsors.

Of Note: Recently there has been a groundswell of momentum in Congress for criminal justice reform, with numerous bills being introduced with strong support from both sides of the aisle. Among those proposals are the REDEEM Act — which focuses on record expungement for low-level and juvenile offenders; the Smarter Sentencing Act that modifies federal mandatory minimums; the CORRECTIONS Act that creates a system for earned time and early release for low-risk prisoners; and bills that attempt to improve mental health screenings in the criminal justice system and reduce recidivism.

According to the Urban Institute, the federal prison population has increased tenfold from 1980 to a level exceeding 218,000 prisoners. An assessment of the federal prison system by the Government Accountability Office (GAO) found that in fiscal year 2014, the cost of federal prisons was almost $7.3 billion — which is about 19 percent of the DOJ’s total annual budget.

Media:

Summary by Eric Revell
(Photo Credit: "Inmates Orleans Parish Prison" by Bart Everson - Flickr: Inmates. Licensed under CC BY 2.0 via Wikimedia Commons)