< Previous20 PERSPECTIVES VOLUME 43, NUMBER 3 that continually produce friction and occasionally erupt in earthquakes. This friction manifests in traditional political combat, mass demonstrations, prison rebellions, and academic and policy work. Periodically, major changes in conditions like crime rates and the economy provide support and opportunities to one side or another. These changes often bring together unlikely allies. People typically associate the “law and order” approach to criminal justice with Republicans. However, new research shows how liberals laid the ground for these policies. It was the Democratic administration of President Lyndon Johnson during the 1960s that first launched the “war on crime” by expanding federal funding to build up the capacity of local law enforcement agencies. In the following decades, the crime rate spiked, due in part to better reporting by police departments, and crime became a hot political issue. By the 1990s, Republicans and Democrats had all but converged on attitudes toward law enforcement. Not wanting to lose to Republicans by being portrayed as “soft on crime,” Democrats took increasingly “tough” criminal justice stances. President Bill Clinton’s wildly popular 1994 Violent Crime Control and Law Enforcement Act was the apex of this bipartisan enthusiasm for aggressive policing, prosecution and punishment. The bill made federal sentencing guidelines more severe, increasing both life sentences and the death penalty, and built up funding streams to increase local police forces and state prison capacity. Despite the rhetoric of the crime bill, the best evidence suggests that it played little role in the explosion of the national prison population – or what scholars term “mass imprisonment.” This is because policies focused on harsh punishment had already peaked by 1994. In addition, it only applied to the federal system, which represents only 10 percent of all people locked up. Finally, even though there was wide support for the crime bill, activists, politicians, judges and others continued to fight against “tough” punishment, eventually building the momentum for the First Step Act. FIRST STEP ACT What does this history tell us about the First Step Act? First, it’s not surprising that Republicans and Democrats, conservatives and liberals came together on the bill. Both camps have moved away from the “tough on crime” mantra. Democrats now talk of “smart on crime” policies while some Republicans support the “right on crime” initiative. Both agree that aggressive policing and heavy criminal penalties for low-level offenses, particularly drug crimes, do more harm than good. The rise of a new approach to criminal justice can be tied to a number of changes since the 1990s, including historically low crime rates, strained 21 AMERICAN PROBATION AND PAROLE ASSOCIATION state and federal budgets and a growing awareness of the negative consequences of mass incarceration. Critically, a cadre of conservative leaders spent the past two decades working to change Republican orthodoxy on this issue. They frame mass incarceration as a fiscal and moral failure that wastes tax dollars and violates the Christian principles of “second chances” and redemption. As a result, criminal justice reforms have been spreading to red and blue states alike since the 2000s. After the 2016 election, advocates including Jared Kushner, and a slew of celebrities like Kim Kardashian West, have urged the President to embrace reform. These pressures ultimately succeeded in prompting the White House to support the First Step Act. However, bipartisan consensus is not as seamless as it is sometimes portrayed. A group of Republican leaders remain aggressively opposed to these criminal justice reforms. And at the last hour, they nearly killed the First Step Act. That takes us back to Barr – Trump’s recent selection to replace Sessions at the Department of Justice. Barr was President George H.W. Bush’s Attorney General. He is perhaps best known for endorsing a Justice Department memo arguing for “More Incarceration” in 1992. As recently as 2015, he vocally opposed federal sentencing reform. During his confirmation hearing last week, Barr promised to “diligently implement” the First Step Act, but then backtracked to support Session’s policies at the Justice Department, adding, “we must keep up the pressure on chronic, violent criminals.” Like the ‘94 bill before it, this indicates that the First Step Act will likely be more bark than bite. The First Step Act might provide relief to several thousand current federal prisoners. But Barr will likely follow Sessions and direct his prosecutors to seek the maximum criminal penalties against current defendants, including for drug offenses, limiting the impact of the First Step Act’s sentencing reform. And the bill will have no practical effect on state prison systems, which in some cases have already embraced much more radical reforms. While the First Step Act is a move in the direction of more humane and moderate criminal justice practices, I think it will likely be a very small first step indeed. ABOUT THE AUTHOR MICHELLE PHELPS, Ph.D., is an Assistant Professor of Sociology and Law at the University of Minnesota. She can be reached at STATE COMMUNITY SUPERVISION REFORMS CAN INFORM A FEDERAL “SECOND STEP” BY JAKE HOROWITZ AND TRACY VELÁZQUEZ23 AMERICAN PROBATION AND PAROLE ASSOCIATION The FIRST STEP Act, passed with bipartisan support in Congress and signed into law by President Donald Trump late last year, includes provisions designed to safely reduce the federal prison population. It reforms mandatory minimum sentences for “three strikes” drug offenses, applies Fair Sentencing Act sanctioning for crack cocaine to convictions occurring before 2010, and directs the Bureau of Prisons to calculate at 15% of the total sentence the time that can be taken off for good behavior. The measure, which is officially called the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was passed against a backdrop of increasing congressional and public scrutiny of the federal correctional system over the past decade. While down 16% from its peak in 2012 (Bronson & Carson, 2019), the federal prison population in 2019 is still over seven times what it was in 1980. As the prison population has grown, so too has annual federal prison spending, climbing from less than $1 billion to more than $7 billion in 2018 in inflation-adjusted dollars (The Pew Charitable Trusts, 2016b), an increase of nearly 600%. Improvements to the federal prison system have been built upon state efforts. More than two dozen states have already adopted wide-ranging corrections reforms, often with overwhelming bipartisan support (The Pew Charitable Trusts, 2018), and those reforms have reduced prison populations while helping to hold people accountable, increase public safety, and save taxpayers billions of dollars. Many states have also recognized the need to improve success rates for people on probation and parole– collectively, community supervision–in order to safely shrink prison populations. To help achieve that, those states have adopted policies to make community supervision systems more effective, including developing intermediate sanctions as a response to violations of conditions, creating pathways for people to earn their way off supervision, and investing in evidence-based supervision practices (Parks et al., 2016). These steps promote the use of supervision as an effective community-based alternative that holds people accountable yet at the same time makes treatment more readily available and allows individuals on probation and parole to maintain ties with work and family while building stable lives, overall resulting in more safety for those in the community. These steps additionally allow prison resources to be increasingly focused on people with the most serious and chronic offense histories. Much as the FIRST STEP Act came on the heels of state prison reforms, the federal system could again follow the lead of the states and take the “second step” of making community supervision a primary focus and implementing policy changes such as those outlined below.24 PERSPECTIVES VOLUME 43, NUMBER 3 BETTER UTILIZATION OF PROBATION In 2009, approximately four people were in federal prison for every person on probation. By 2016, the prison- to-probation ratio had risen to 12- to-1, with a 56% drop in probation entrances over the past 20 years (The Pew Charitable Trusts, 2016b). These diminished probation numbers were due partly to laws passed in the 1980s and 1990s that mandated prison time for many offenses that previously had often resulted in probation. Congress should revise sentencing policy to expand the use of probation as an alternative to incarceration for people assessed as low risk for reoffending. Such a move could improve outcomes for both public safety and individuals on supervision. Instituting this change could also save taxpayer dollars. The average annual cost of federal incarceration after sentencing for the 2016 fiscal year was $34,770, compared to $4,392 for supervision in the community after sentencing (United States Courts, 2017). Per 2016 cost figures, increasing by one-third the number of people who are placed on probation instead of going to prison (an additional 2,294 people, as extrapolated from 2018 probation statistics) would save approximately $69.7 million per year–funds that could be used to improve supervision services, further reducing recidivism. Figure 1 Source: 25 AMERICAN PROBATION AND PAROLE ASSOCIATION The U.S. Sentencing Commission (USSC) recently took a step toward better utilization of probation by amending sentencing guidelines to state that federal courts should consider a sentence other than prison for low-level “nonviolent first offenders” (USSC, 2018b). The impact of this action is difficult to predict, as the USSC did not provide an estimate of how many individuals might fall into this category and, of course, following the revised guidelines is discretionary, not mandatory for the courts. Nevertheless, this change signals progress toward limiting the use of federal prison beds for those who pose a higher risk. USE POST-PRISON SUPERVISED RELEASE MORE EFFICIENTLY AND EFFECTIVELY Because parole was eliminated for federal offenses committed on or after November 1987 (Hoffman, 2003), the number of people on federal parole is small and shrinking. However, the number of people on supervised release, which replaced parole as the system of supervision following the completion of a prison sentence, increased 89% from 1999 to 2018 (United States Courts, 2019a). A report by the USSC on people sentenced from 2005 to 2009 indicated that 95% of people given a prison term were also given a term of supervised release. From 2005 to 2009, the average supervised release term was 41 months, and of those cases where a prison term was imposed, 43% received more supervision time than incarceration time (USSC, 2010). Reducing the length of supervision would allow resources to be focused on the highest-risk people, places, and times. A 2017 analysis indicated the average time spent under federal supervision rose 12% from 1995 to 2015 (The Pew Charitable Trusts, 2017). However, the value of these long terms of supervision is questionable. One study of people on federal probation or supervised release from 2005 to 2009 showed that 70% of revocations during the five-year study period occurred within the first two years (Rhodes, Dyous, Kling, Hunt, & Luallen, 2012). In addition, the five-year recidivism rate for people sentenced to two years of supervision was almost the same as those sentenced to three years of supervision (37.8% compared to 41.0%). Nonetheless, 72% of those on supervised release had supervision terms of three years or longer. Congress could take a page from the states’ playbook and institute a system of earned compliance credits in which abiding by conditions of supervision reduces the time on supervision. Federal courts already have the authority to terminate supervised release at any time after one year, but they do so infrequently, with only about one in five successful exits accomplished through an early release (United States Courts, 2019d). A study conducted by the Administrative Office of the U.S. Courts provides evidence that releasing inmates earlier based on 26 PERSPECTIVES VOLUME 43, NUMBER 3 earned compliance credits can be done without compromising public safety. The study showed that 10.2% of those released early from federal supervision were rearrested, as compared to 19.2% of a comparable group released after completing their full sentences (U. S. Courts, 2013). Similarly, an evaluation of Missouri’s earned compliance credit policy found no difference in subsequent new crime conviction rates between those who earned credits and those discharged from supervision before the policy went into effect. In the first three years, more than 36,000 people on probation and parole reduced their supervision terms by an average of 14 months, resulting in an 18% drop in the supervised population (The Pew Charitable Trusts, 2016a). REDUCE TECHNICAL REVOCATIONS The Administrative Office of the U.S. Courts reported that 69% of the 17,503 revocations of post-conviction supervision in 2018 were due to “technical revocations” such as failing a drug test, missing a meeting with a supervision officer, or traveling without permission (Administrative Office of the United States Courts, 2016), as opposed to new crimes (United States Courts, 2019c). While revocations for new offenses are down over the past 10 years for both federal probation and supervised release, technical revocations are up, accounting for 24.5% of supervised release exits in 2018, which is up from 20.5% in 2009, and 9.4% of probation exits, up from Figures 2 and 3: 27 AMERICAN PROBATION AND PAROLE ASSOCIATION 6.9% (United States Courts, 2019b). One reason for the large numbers is that revocation is statutorily mandated for violations related to drug use, including failing three or more drug tests in a year, refusing to take a drug test, and illegal possession of a controlled substance (USSC, 2018a). A survey of U.S. District Court judges (USSC, 2015) revealed that over 60% of judges said revocation should not be mandatory for these violations. Two-thirds of judges wanted the option to shorten minimum revocation sentences for less serious violations. Moreover, 94% of judges said they should have the option of shortening the period of incarceration by modifying the conditions of supervision. Revoking a term of post-conviction supervision in the federal system for a technical violation can also add time to a future sentence. A USSC study (Kyckelhahn & Maisel, 2019) found that over half (57.5%) of the convicted individuals in the sample who had a revocation for a technical violation received an additional criminal history point, which can increase the period of incarceration under the commission’s sentencing guidelines. In almost half of these instances (48.3%) the revocation bumped the convicted individuals to a higher criminal history category with a longer recommended sentence. In addition, 2.3% of those with drug trafficking convictions were rendered ineligible for the federal “safety valve” provision of the Sentencing Reform Act that authorizes a sentence below the statutory minimum when the conviction score changes as a result of a revocation. The federal government can look to the states that have policies aimed at reducing technical revocations (The Pew Charitable Trusts, 2018). For example, South Carolina’s 2010 Justice Reinvestment Initiative reform package allows supervision officers to address violations through administrative sanctions in lieu of using the court revocation process. A 2017 evaluation by the Urban Institute concluded that those who began supervision under South Carolina’s policy were 33% less likely to be incarcerated or reincarcerated after one year than those who began supervision in 2010 (Pelletier, Peterson, & King, 2017). The state estimated that during this period it saved over $50 million by revoking 1,943 fewer people from supervision (South Carolina Department of Probation, 2018). Creating statutory pathways to permit administrative sanctions instead of revocations, reducing the number of violations for which revocation is mandatory, and allowing judges more discretion to impose shorter periods of revocation would all help reduce the number of people on supervision who cycle back through the Bureau of Prisons. Federal policymakers should borrow from the laboratories of democracy and their colleagues at the state level by taking a second step that moves beyond the 28 PERSPECTIVES VOLUME 43, NUMBER 3 walls of the Bureau of Prisons to address probation and supervised release. As the experiences of states have shown, reforming community supervision can have a positive effect across the entire criminal justice system, from rearrests to reincarceration. This, in turn, can save federal correctional dollars and improve public safety. REFERENCES United States Courts. (2017). Incarceration 29 AMERICAN PROBATION AND PAROLE ASSOCIATION United States Sentencing Commission. (2018a). 2018 Guidelines Manual. In Chapter Seven - Violations of Probation and Supervised Release. Washington, D.C. United States Sentencing Commission. (2018b). Federal Register Notice of Submission to Congress 2018 Amendments to the Federal Sentencing Guidelines. (BAC2210-40). Washington, D.C. ABOUT THE AUTHORS JAKE HOROWITZ is director and TRACY VELÁZQUEZ is a manager with The Pew Charitable Trusts’ public safety performance project. Jake can be reached can be reached Next >