Earlier this month, President Donald Trump threw a party to celebrate one of his only bipartisan victories, the First Step Act, which is supposed to reduce the size of the federal prison population. At the time, I wrote that “the celebration could be premature: Criminal justice reform groups point out that the administration has so far struggled to implement the law, and has failed to fully fund its programs. As Trump continues to brag about the measure, inmates at federal prisons around the country are left in limbo, and many wonder when or if they’ll see the benefits of the law’s promised reforms.” Now there’s another key indication that the First Step Act isn’t being implemented as criminal justice reform groups and some lawmakers intended.
On Monday, the Justice Department announced that the Hudson Institute, a conservative DC-based think tank whose leaders have espoused harsh views on incarceration, would choose the members of an independent committee to help develop a risk assessment tool—a crucial component of the law, as it will be used to determine which federal offenders get access to certain rehabilitative programs and therefore establish how long they remain in prison. Under the law, inmates who participate in these programs will be rewarded with an option to spend more of their sentence at a halfway house or in home confinement. The tool also may be required before the Federal Bureau of Prisons agrees to release thousands of prisoners who thought the law would allow them to immediately shorten their sentences because of their good behavior during incarceration. (As I’ve written before, prison reform groups who pushed for the law were under the impression that the release of these well-behaved inmates would be immediate and not tied to the development of the risk assessment tool; officials in charge of the law’s implementation have disagreed, leaving the prisoners hanging in the middle.)
Now lawmakers of both parties who backed the First Step Act are alarmed at the Justice Department’s latest move, and at least two senators made clear their discomfort during a hearing on Wednesday. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Dick Durbin (D-Ill.) said of the Hudson Institute during a confirmation hearing for deputy attorney general nominee Jeffrey Rosen. “This is a think tank that has a point of view…They published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform.’ This is the same agency that’s now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review [committee] system.”
Sen. Mike Lee (R-Utah) meanwhile described the institute as an “opponent of the First Step Act” and asked whether Rosen would choose another group to focus on the risk assessment tool if he were confirmed. (Rosen did not answer that part of the question but said he supported the First Step Act.) “I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”
The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program. One of the members is its own chief operating officer, John Walters, who served as a drug czar in the Bush administration. During his confirmation hearing for that position in 2001, some senators said they were concerned about his views on criminal justice: He had written it was a “great urban myth” that the country was imprisoning too many people for drug possession, and he had suggested that the disparity between crack and powder cocaine sentences was merely a “perceived racial injustice,” implying no real racial discrimination was at play. In 2015, after he joined the Hudson Institute, he wrote that the concept of “mass incarceration” was also a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.” These views appear to be in direct conflict with changes in the First Step Act, including reforms to ease some mandatory minimum sentences and retroactively reduce sentencing disparities between crack and powder cocaine offenses. (That said, a Hudson Institute spokesperson says Walters has publicly endorsed reforms to crack sentencing since the early 2000s.) More than 600 people with crack offenses have already been released from prison due to the retroactive reform in the First Step Act; that provision could still affect another 2,000 offenders, mostly people of color.
In 2016, Walters gave the opening remarks when Hudson Institute hosted a speech by Sen. Tom Cotton (R-Ark.), who has vehemently opposed criminal justice reform in Congress, including the First Step Act and the 2015 Sentencing Reform and Corrections Act, which included several of the same key reforms put into law by the First Step Act, including the formation of a risk assessment tool to ensure that prisoners have access to the appropriate rehabilitative programs. Walters described Cotton as “a powerful and respected leader on critical policy issues of our day” and welcomed his discussion of “the consequences of various reform proposals and policy alternatives to protect public safety.” Cotton then said in his speech, “Releasing a flood of these violent felons into our streets would surrender the hard-won gains of the last generation.”
“As for the claim that we should have more empathy for criminals, I won’t even try to conceal my contempt for the idea,” the senator added.
Walters was similarly vocal in his opposition to the 2015 Sentencing Reform and Corrections Act. He signed a letter urging Senate Majority Leader Mitch McConnell to kill the bill, saying it would be “undeniably harmful to the interests of public safety and justice.” “Our system of justice is not broken,” the letter, signed by dozens of former senior law enforcement officials, stated. “Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back.” The officials wrote that they were especially concerned about retroactive sentencing reductions like the one for crack cocaine offenders, saying these would “benefit dangerous criminals who have violated clearly established laws.”
Walters has also expressed skepticism on the very risk assessment tool he’ll now be integral to crafting. In January, he co-wrote an article on the Hudson Institute’s website arguing that it would be crucial to approach the development of a risk assessment tool with caution because it will determine who can leave prison earlier; he said about half of federal offenders go on to be arrested for a new crime or a violation of their supervision conditions, a statistic from a 2016 study by the US Sentencing Commission. “In the simple interest of public safety, then, if we are to shorten sentences and thus incrementally reduce the federal prison population, it stands to reason that we must do so only with the utmost care and caution, employing only the most rigorous and reliable risk-prediction methods,” he wrote.
In his January article, Walters also argued that the Justice Department’s mandated timeline for the development of the tool—by late July—might not be feasible. “The very particular ‘risk and needs assessment system’…of the First Step Act does not currently exist and may take time—lots of time—to properly develop and implement,” he wrote.
The odds of finishing on time are worse because the Justice Department has missed a previous deadline. It was supposed to convene the risk assessment committee by late January, giving the group roughly six months to help develop the risk assessment tool, but that action was delayed by the record-long government shutdown. “We’re now more than 80 days past that deadline of when it was supposed to be in place,” Sen. Lee said Wednesday of the committee. Even with the delay, some experts disagree with the Hudson Institute and say it should be possible to develop the risk assessment tool by late July. “These things are pretty straightforward—they’re easy to develop, it doesn’t take much time,” says James Austin, president of the JFA Institute, a criminal justice nonprofit that has designed similar recidivism risk assessment tools for state prisons in Maryland, Texas, Louisiana, and Arkansas. “I’ve done them in three or four months,” he says.
It’s unclear if the Hudson Institute is finished forming the risk assessment committee. The law says the committee members should be experts on risk assessment systems, including two who have published peer-reviewed studies on the subject, two who have developed these systems previously, and one with prior experience working for the Bureau of Prisons. Six members, the number required by law, have been selected so far, including Walters; Pennsylvania Corrections Secretary John Wetzel; George Terwilliger III, the deputy to Attorney General William Barr during the Bush administration; Faye Taxman, a criminology professor at George Mason University; James Byrne, a criminology professor at the University of Massachusetts Lowell; and Patti Butterfield, a former senior deputy assistant director in the Bureau of Prisons reentry services division. Wetzel has been a national voice in corrections issues as head of the Association of State Correctional Administrators, and some criminal justice reform activists have described him as relatively forward-looking compared with other corrections secretaries. Austin of the JFA Institute said he was also familiar with Taxman’s and Byrne’s work. But the Leadership Conference on Civil and Human Rights, a coalition of progressive groups that supported the First Step Act, said it was unclear whether all six members fit the law’s criteria for relevant experience with risk assessment tools.
The Justice Department did not respond to questions from Mother Jones about its decision to select the Hudson Institute for the job. “The Department of Justice is committed to implementing the First Step Act,” Barr said in a statement Monday, adding that the Hudson Institute’s work would lead to “better outcomes for prisoners reentering society.” A spokesperson for the institute said the committee played an advisory role and that the Justice Department would have the final say on the risk assessment tool.
Asked whether Walters stood by his previous statements that mass incarceration was a “myth,” the Hudson Institute spokesperson noted that federal inmates represent roughly five-hundredths of 1 percent of the American population. The duties of the risk assessment committee, she noted, “are entirely restricted to the federal prison system, and are of a technical, administrative, evidentiary, and practical nature. Broader philosophical questions concerning American penology at the state and local level are not in the [committee’s] mandate.” Of Walters’ views on crack cocaine sentencing, the spokesperson said he wanted to eliminate the crack and powder sentencing disparity, and she pointed to a 2009 op-ed, in which he suggested that lawmakers should reduce harsh penalties for low-level crack offenders but leave these punishments in place for offenders with a history of violence or prior felonies. (He also said mandatory minimums for crack had helped lower addiction in the country by taking “significant toll on traffickers and dealers.”)
The spokesperson added that while Walters opposed the 2015 Sentencing Reform and Corrections Act, “he has never placed himself in ‘opposition’ to the use of risk and needs assessment systems in correctional settings, and is a proponent of effective recidivism-reducing reentry programs at BOP and in state and local prison systems throughout the country.” And the spokesperson stood by Walters’ previous assessment that the July deadline to develop the risk assessment tool might not be feasible, saying this was “a task of great complexity which should not be underestimated,” and that it would involve design, statistical validation, training for federal prison officials, practical implementation, and the development or expansion of current Bureau of Prisons recidivism reduction programming.
No matter what happens with the risk assessment committee, it seems likely Trump will continue to boast about the measure on the campaign trail over the next year, as he has over the past few months. “Americans have always believed in the power of redemption—that those who have fallen can work toward brighter days ahead,” he proclaimed ahead of the party at the White House this month. “My Administration is committed to helping former prisoners reenter society as productive, law-abiding citizens.” Critics, meanwhile, are quick to note that his administration has missed deadlines to implement the law and failed to adequately fund it. The First Step Act calls for $ 75 million in funding per year for five years, starting in 2019, but Congress didn’t allocate any funds for it in the 2019 fiscal year. And Trump’s proposed 2020 budget sets aside only $ 14 million to implement it, far short of the amount specified.
“The Trump administration touts the First Step Act as a major accomplishment, but continues to fail to uphold the spirit and letter of the law,” says Sakira Cook of the Leadership Conference on Civil and Human Rights. The group opposes the Justice Department’s selection of the Hudson Institute, which it says has “no visible expertise or experience in the study and development of risk and needs assessment systems.”
“Barr’s selection of the Hudson Institute,” says Cook, “is an abdication of duty.”
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