The ‘Big Step Act’ for Criminal Justice: Biden’s Path to Legislative Progress

The road to power in the Senate runs through Georgia. And while some Democrats are holding out hope for what would a be remarkable political overhaul, Republican incumbents will lean into their historically stronger runoff turnout in Georgia, rallying support from Governor Kemp and President Trump to the bitter end.

So what’s the Biden team to do if Republicans retain a one or two-seat margin in the Senate? With Majority Leader McConnell’s near-infallible record when it comes to whipping party members into line, it borders on naïve to imagine a universe in which the President-elect can hang his hat on landmark healthcare, immigration or climate-centered reform at the end of his first term. Against a backdrop of near record-low public trust in government and near record-highs in Congressional gridlock during the past decade, there is ample reason to hold Biden’s ambitious agenda up to the light of political reality.

And yet, despite a seemingly learned paralysis that has characterized the United States’ 21st century Congress, there is an issue of critical importance that has both demonstrated recent, bipartisan progress and taken center stage in a year desperately in need of change: criminal justice. This is where Biden should strive to enact landmark bi-partisan policy during his first term.

The First Step Act

A near-universal bright spot during the Trump administration came with the passage of a long-overdue criminal justice bill, the First Step Act (FSA), which passed the Senate in a rare bipartisan vote (87–12) on December 18th, 2018. A few of the Act’s more notable measures included amendments to the Controlled Substance Act (Title IV, Section 401) to reduce drug-related mandatory minimums (e.g. 20 to 15 years for second-time violations), expanded rehabilitation options in prison, and retroactive sentence reductions for those imprisoned under the infamous “100-to-1” crack-cocaine sentencing logic. These changes are significant, but this legislation is true to its name. In the year immediately following its passage, the Sentencing Project found only marginal, mixed outcomes for the 2.3 million people currently incarcerated across the United States. The FSA was important symbolically, but its impact is minimal at best. It’s high time our country put forth a ‘Big Step Act’-and Biden’s first year in office is uniquely suited to meet this challenge. There are (at least) five major reasons why.

  1. We’re situated in a unique national moment.

“Especially at those moments when this campaign was at its lowest ebb, the African American community stood up again for me…You’ve always had my back, and I’ll have yours.”

Whether one of the more salient moments of Biden’s victory speech truly had a policy backbone at the time of its writing is hard to say, but the Democrats have a real opportunity to make something material of 2020’s unprecedented movement for justice. In the wake of George Floyd’s murder, Associated Press and the University of Chicago’s National Opinion Research Center (NORC) found 95% of Americans support at least some criminal justice and police reform, with 29% stating the system needed a “complete overhaul”. Notably, this did not include defunding the police (which remains largely unpopular), but aligns with research performed by the Justice Action Network, which recently found 66% of voters “approve of moving people convicted of non-violent offenses out of prison and into alternative programs” and 60% of voters believe “business owners with criminal records should not be prohibited from receiving Payroll Protection Program loans or other federal stimulus money.” On somewhat smaller, but still-meaningful issues, JAN found even 59% of Republicans were in favor of moving older prisoners (who largely pose no societal threat) out of cells and into home detention.

Beyond the statistics, our country is experiencing a national reckoning on race raised to the power of a pandemic. While Michael Brown, Eric Garner and so many before them should have been tipping points, the unfiltered, unfeeling murder of George Floyd took place in our living rooms. His murder was different because it was bereft of every possible excuse. He didn’t “appear threatening” or “make a sudden movement”; there were no conflicting testimonies; he was just taken from the world on camera. And it propagated across every television and social platform with the rapidity and staying power this issue finally deserves. It can’t be known how long this wave will last, but it’s been more durable than any in recent memory, in part because this pandemic forced us to stay at home and face these powerful, heartbreaking images without the distraction of our day-to-day. As my former boss used to say, let no good crisis go to waste. Biden needs to take the sacrifice and momentum the African-American community imparted him-from the start of the primaries all the way to election day-and convert it into meaningful change.

2. Bipartisanship: The First Step Act was just passed-by Trump.

Had I left my Twilight Zone reruns on again? The news that our very-fine-people-on-both-sides President signed into law the first substantial criminal justice reform bill in years came as a slight shock. And it’s passage wasn’t close-it hop-skipped through the Senate with an 87–12 vote on December 18th, 2018. Overwhelming bi-partisanship like this is hard to come by, and it’s the scaffolding on which Biden should build historic legislation. There are a number of ways to achieve criminal justice reform, and the Democrats could very well find the votes to make a much bigger mark. The First Step Act included dozens from the Republican caucus, even names like Chuck Grassley (R-IA) and Lindsey Graham (R-SC)--hardly staunch progressives. Leader McConnell still insisted upon an intraparty fight over the marginal reforms set out in the FSA, with vocal backing from Senator Tim Cotton (R-AR) and others, but there proved persistent support from across the aisle. Biden needs to get his experienced Minority Leader and what moderate Democrats are left to determine which specific policy initiatives would receive majority support in the Senate.

And is there a world in which Mitch still calls on his Republican colleagues to man the cannons and block any and all legislation just to show Biden who’s who? Sure. But given the bipartisanship already established, this issue is most likely to be one that is (a) important to Democrats and (b) could garner the necessary swing votes to pass something meaningful.

3. Criminal justice reform resonates with the Democratic base

The vast majority of Biden’s base supports this progressive criminal justice reform, and it would be the type of meaningful social change that could rally his diverse coalition to a strong bid for re-election in 2024. Nearly all major Democratic primary candidates ran on bold reforms for the criminal justice system, and this issue can be framed simultaneously as a consistent policy answer to the Black Lives Matter movement, and a broader repudiation of the War on Drugs and mass incarceration. As Pew Research showed with relative consistency up until election day (see figure 1 below), this past election was a referendum on Donald Trump. Whether Biden faces his reincarnated old foe, some QAnon-Proud Boy-Rush Limbaugh hydra, or (perhaps most frighteningly) a moderate, run-of-the-mill, lower-your-taxes ’86 Republican vintage in his bid for re-election, the Democratic base will need something to vote for come 2024.

4. Criminal justice reform is voter mobilization

Voter suppression and disenfranchisement are the central pawns of Republican electoral strategy. If meaningful reforms are passed which grant greater voting rights to the formerly incarcerated, this could prove decisive in states to which these formerly incarcerated individuals are returning. Less discriminating laws around drug enforcement, and less extensive, debilitating imprisonment means minority, largely African-American, individuals are implicitly given greater economic opportunity and a greater voice in our democracy.

It’s also critical to note that approximately 90% of incarcerated individuals are held at the state or local level, and therefore fall outside federal jurisdiction. Each State has instituted its own practices around voter re-enfranchisement for the currently and formerly incarcerated, with policies typically falling into four main categories (as per the National Conference of State Legislatures in the attached table below). Only in the District of Columbia, Maine and Vermont do felons never lose their right to vote while they’re incarcerated, and in only 16 additional states do felons receive their right to vote immediately upon release. Tax-paying U.S. citizens are regularly detained in jail without ready access to voting, face extended parole sentences during which they cannot vote, and encounter Kakfaesque processes for reinstating their right to vote. According to the Sentencing Project, between 70 and 100 million (nearly one in three) Americans have some form of criminal record, and nearly one in three Americans are arrested by age 23. As of 2016, an estimated 6.1 million people were disenfranchised due to a felony conviction. Naturally, poorer communities of color are disproportionately affected. One in 13 voting-age African Americans are disenfranchised, compared with 1 in 40 voting-age adults nationwide. Florida alone accounts for 27% of the disenfranchised population, hence the hubbub around the State’s Amendment 4 this past election season which ostensibly intended to restore voting rights to 1.4 million felons (and which the governor and state legislatures rather effectively stymied).

The Biden team should build a dedicated task force to align on a cohesive state-by-state strategy for voting restoration for the formerly incarcerated, working hand-in-hand with organizations like Stacey Abrams’ Fair Fight to actualize that strategy at the state level. In addition to coalescing a state-by-state playbook for criminal justice reform, Biden should campaign for legislation at the federal level. A Big Step Act would include (at least) targeted reform to: (i) reduce mandatory minimums considerably-particularly for archaically punitive drug-related sentences, (ii) eliminate the death penalty, (iii) tie federal funding directly to lower rates of incarceration, lower overall prison populations and higher rates of completion for in-prison education and rehabilitation-related programming, (iv) fund legal defense bodies and personnel to ensure quality lawyers represent low-income defendants, (v) provide substantial grants to law enforcement agencies for body cameras and clear, reformed use-of-force practices, and (vi) give state and local officials ample financial resources and immediate access to health practitioners to prevent prisons and jails from once again becoming the most disproportionately impacted population during a public health crisis. These are just a handful of suggestions, yet any one of these reforms would pay considerable dividends at the ballot box.

It also goes without saying that the GOP knows this in at least as much detail as the Democratic Party. Biden should introduce sweeping legislation in the House with an ambitious plan that includes all of the above and more. In the background, Schumer and company need to cautiously determine the reality of this kind of legislation. Perhaps certain Republican Senators have a close relative in prison or who’s struggled to rejoin the workforce post-incarceration. Still others might have suffered directly or indirectly from addiction. Compromise will be necessary; there is no chance Biden gets through meaningful legislation without concessions from the Republican side. But given the bipartisan sentiment behind this issue, there is likely a path to writing a handful of the above provisions into law if the Senate is artfully navigated.

5. Landmark legislation would be a statement for the country.

Congress needs to re-learn cooperation. If Senators can return to their role as the great arbiters of democracy, if only in one policy area, that spirit might make reaching across the aisle just a bit easier for other non-hot-button issues like economic recovery, digital privacy and infrastructure. With the knot of gridlock slackened just a bit, we might not reflexively yank our respective partisan shoelaces at every step.

Perhaps even more importantly, our tightening gridlock has deteriorated faith in our elected officials. Might something like a bi-partisan Big Step Act start the process of building back that faith? Shaking someone’s (virtual) hand still means something, and the impact of voter restoration, economic opportunity and a second chance in life has a step-change impact for individuals of every creed, class and color. With our nation plummeting headlong into an age of disinformation and parallel digital universes, helping the most vulnerable among us is something that could make us all feel distinctly human again.

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