Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform
2018 was a mixed bag, but that means there was still a lot of good news.
With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.
But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking. And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.
Here are some highlights (and lowlights) of American criminal justice in 2018:
The FIRST STEP Act passed (finally). After years of lobbying, activism, and negotiations between Senate Democrats and Republicans, we finally saw important changes to federal sentencing policy and prison programming happen right as 2018 was wrapping up.
The FIRST STEP Act expands job training opportunities for federal prisoners, calls for inmates to be housed within 500 miles of their hometowns and families when possible, and bans the shackling of pregnant inmates. It also reduces some mandatory minimum sentences, gives judges more leeway to show mercy with "safety valve" provisions, and, perhaps most importantly, retroactively applies the Fair Sentencing Act of 2010 to prisoners who have been given harsher sentences for drug crimes because they involved crack instead of powder cocaine. That last part is expected to reduce the sentences of approximately 3,000 prisoners.
The bill passed easily in the House, but was caught up in the Senate by Republican lawmakers who demanded it be weakened. Sen. Tom Cotton (R–Ark.) tried his best to kill the bill, claiming that America, despite all evidence to the contrary, has an "underincarceration" problem. Cotton failed and President Donald Trump signed the bill into law on Dec. 21.
Marijuana legalization continued apace. In November, Michigan became the 10th state to legalize recreational marijuana consumption, the result of a voter-approved ballot initiative. Vermont also legalized recreational use through lawmaking in 2018. Oklahoma, Utah, and Missouri voters all approved medical marijuana use this year.
Legalizing marijuana consumption inherently serves as criminal justice reform on the front end by reducing opportunities for police to arrest people on the basis of what they put in their body. That's great moving forward, but it leaves the matter of all those people who have criminal records from their pre-legalization arrests. Thankfully, many stats and cities are working on expunging those records. If there isn't one already, there should be a replicable legislative model for mass expungement of cannabis offenses.
The desire of state and local governments to find ways to make money off of marijuana is causing its own set of problems. California's regulatory and tax regime is so oppressive that many companies are finding it hard to get off the ground. The state did not earn nearly as much revenue as it predicted for 2018 and a black market for pot continues to exist in most legalization states.
Civil Asset Forfeiture under the microscope. The more Americans learn about civil asset forfeiture, the more they hate it. In 2018, Philadelphia agreed to scale back its program in response to a class-action lawsuit, and a federal judge ordered Albuquerque to stop its own program, which continuied to operate in defiance of state law.
A case heard by the Supreme Court in November will keep civil asset forfeiture in the news in 2019. In Timbs v. Indiana, the justices have been asked whether these property seizures are violations of the Eighth Amendment's ban on excessive fines and fees. During oral arguments, the justices seemed very skeptical of the idea that government representatives have the authority to take and keep your property in response to anything they deem criminal activity. It seems likely that a ruling in 2019 will force a scaling back of the practice.
Attorney General Jeff Sessions shown the door. When Trump nominated Sessions as his first attorney general, it seemed as though he was actually closing the door on the possibility of a more merciful criminal justice system. Sessions' view of the law is harsh and punitive. He's a drug warrior through and through. He exaggerated crime statistics to sow fear and stop reforms, and he undermined efforts to hold police accountable for misconduct. He also ordered federal prosecutors to pursue the harshest possible penalties for drug offenders in order to maximize their sentences, and he advocated attacking doctors as the right way to fight the opioid overdose crisis.
But he wasn't able to stop Robert Mueller's special investigation into Russia's attempts to meddle in the 2016 presidential election, which is the thing Trump seems to have wanted most from his attorney general. Right after the November election, Trump demanded Sessions' resignation. Unfortunately, William Barr, Trump's nominee to replace Sessions, could be a lot like his predecessor.
The war on sex trafficking leads to online censorship, not safety. In April, Trump signed the Fight Online Sex Trafficking Act (FOSTA) into law. Ostensibly intended to help fight forced human sex trafficking online, the law strips online platforms of their protections from liability for prostitution advertising. That means platforms like Facebook and Reddit could be held legally responsible for sex work ads.
Having shut down Backpage.com, the federal government is continuing to prosecute the site's founders (not under FOSTA but under the Travel Act). We've since seen all sorts of sex-related censorship bubble up on social media platforms and other online outlets, from Craigslist removing personal ads, to YouTube removing videos that teach sex education, to Tumblr's recent decision to delete all "adult" content. While it's hard to draw a straight line from these actions to FOSTA, it's equally difficult to dismiss the legal liability these businesses now face.
What has all this done for the safety of people involved in sex work? Not much. Studies continue to show that it's actually the criminalization of sex work that endangers the lives and safety of its participants.
Treating opioid overdose deaths as murders. One particularly nasty trend advancing in 2018 is for prosecutors to charge people who provided opioids to another user with homicide or murder if the recipient of an overdose. The implication here is that they're going after "dealers," but often supplier is a friend or somebody close to the overdose victim. The threat of extremely harsh prosecution discourages people from calling for emergency assistance in the case of overdoses.
These prosecutions have not deterred opioid abuse or prevented overdoses, but harm reduction efforts, like access to naloxone, have made a difference in places like Ohio. In addition, several cities this year explored the possibility of opening up supervised injection sites that would give people who are addicted to drugs a relatively safe place to use. San Francisco had planned to open sites this year, but Gov. Jerry Brown vetoed legislation that would have protected clinic workers from police prosecution. Some cities are promising to build sites in 2019.
Reducing dependence on cash bail. This year marks two years since New Jersey implemented a new bail system that all but eliminated the demand requirement that people arrested for crimes pay some sort of bail in order to remain free prior to their day in court.
New Jersey now uses pretrial risk assessments to determine the likelihood that a defendant will miss court or potentially commit crimes while free. Based on that assessment, judges can require various levels of monitoring or even detain defendants if they seem to dangerous to be freed. Whether a person is stuck behind bars before being convicted is no longer based on how much money they can scrape together. In 2018, Alaska launched its own pretrial systems to reduce its dependence on bail, and California passed a bill over the summer that would completely eliminate the use of cash bail bonds. The reforms may seem new to the public, but have been in the works for years.
Doing away with cash bail sounds good in theory. Studies show that it's the poorest defendants who end up detained in jail under a cash bail system, even when they're not flight risks or dangers, and the end result is that they often get terrible plea deals and harsher sentences than they would if they were free. All of this costs taxpayers billions of dollars. But giving judges the power to detain defendants with no bail option at all can backfire. While New Jersey's system has resulted in more people being freed prior trial, in Baltimore, judges ended up detaining more people than they were in the cash bail era. In California, these bail reforms give judges a lot of power over how these pretrial systems will operate, and civil rights groups worry the state will end up more like Baltimore than New Jersey.