TOUGH, ANTI-CRIME rhetoric has been part of Donald Trump’s public persona for decades. Well before he ran for office, in 1989, he took out full-page ads in New York papers that said, “Muggers and murderers…should be forced to suffer, and when they kill, they should be executed for their crimes.” He announced his candidacy by inveighing against Mexicans “bringing crime”, then courted support from rank-and-file police officers. His first attorney-general, Jeff Sessions, was a hoary drug warrior who reversed Justice Department efforts to help police departments reform and to send fewer people to prison. William Barr, Mr Sessions’s prospective replacement, has similar views. In 1994 he chaired a commission in Virginia that recommended longer imprisonment and the abolition of parole.
But Mr Trump has also been receptive to personal arguments against harsh criminal-justice policies. At the urging of Kim Kardashian, a fellow reality-television star, he commuted the life sentence of Alice Marie Johnson, a 63-year-old woman imprisoned for money laundering and drug trafficking. And at the urging of his son-in-law and adviser, Jared Kushner, he has become an unlikely champion of the First Step Act, a criminal-justice bill with bipartisan support. Reversing an earlier decision, Mitch McConnell, the Senate majority leader, said he would bring it up for a vote before the end of 2018. Despite gripes from some on the right who deem it too soft on criminals, and some on the left who feel it does not go far enough, its passage looks likely. That’s right: a bipartisan bill will probably make it through Congress and then be signed by the president.
The First Step Act is a sentencing-reform bill that repeals some of the harsher federal laws passed in the 1980s and 1990s. In 2010 Congress passed the Fair Sentencing Act, which among other things reduced the sentencing disparity between convictions for crack and powdered cocaine. The First Step Act would make that measure retroactive, allowing nearly 3,000 offenders imprisoned for crack-cocaine offences to petition judges for early release.
It would also reduce the mandatory-minimum sentence for serious drug felonies from 20 to 15 years, and for conviction on a third drug-trafficking or violent felony from life to 25 years. Judges would have more discretion to sentence people with minor previous convictions to less than the mandatory minimum (at present they can exercise that discretion only for non-violent drug offenders with no criminal history). According to an estimate from the Congressional Budget Office, more than 2,000 people a year would be affected by that “safety valve” expansion.
Prisoners would no longer be sent to facilities more than 500 miles from their homes, and pregnant prisoners would no longer be shackled. The bill allows some prisoners, though not those convicted of most violent crimes, to earn time off their sentences by participating in rehabilitative programmes, and it expands federal funding for job-training and educational programming in prisons. More elderly and terminally ill prisoners would be eligible for compassionate release. And all prisoners would be able to reduce their time in prison by up to 54 days per year of their sentence for good behaviour. The Brennan Centre, a think-tank and advocacy group, estimates the bill would result in the release around 5,000 prisoners and shorten sentences for roughly 100,000 more.
Though welcome, this would only nibble at the prison population. Roughly 2.2m people are imprisoned in America. Less than 10% of them are in federal prisons, and federal prisoners are the only ones affected by the First Step Act’s reforms (see chart). Still, Inimai Chettiar of the Brennan Centre calls the bill “a good compromise”—the resigned view held by many advocates of criminal-justice reform. Given the rhetoric of Mr Trump and policies set by Messrs Sessions and Barr, it is probably as much as anyone could hope for from this administration. It may also encourage Democrats, particularly those eyeing a presidential run, to argue for bolder reforms.
Even this modest change has its critics. Jonathan Thompson, executive director of the National Sheriffs’ Association, calls the bill “a giant social experiment,” and argues for “rational prison reform that doesn’t just let people out hoping they won’t recidivate.” Tom Cotton, a Republican senator from Arkansas who has previously said that America has “an under-incarceration problem,” blasted the First Step Act for allowing “early release for many categories of serious, violent criminals”.
Yet while carjackers and bank robbers would indeed be eligible for sentence reduction by completing job-training and educational programmes, Mr Cotton is conflating “early release” with “early transfer to pre-release custody”. The federal prison system does not just wash its hands of violent criminals who manage to chip away at their sentences; they are instead sent to halfway houses, home confinement with ankle-monitoring and other types of supervised, conditional release.
The bill’s opponents may find themselves shouting into the wind. A version of the First Step Act passed the Republican-controlled House in May by 360 votes to 59, and may have as many as 75 supporters in the Senate. That will displease Mr Cotton, as it will leave a bitter taste in the mouths of reform advocates who wanted more. But that is the nature of compromise.