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Op-ed Placement

Congress must take the next steps on federal criminal justice reforms

BY Adam Brandon
01/04/2019
Originally Published in The Hill by Adam Brandon on 1/4/19.

After months of work, Congress has finally taken the “first step” on criminal justice reform. The bill recently signed into law by President Trump, known as the First Step Act, offers a smart path toward reducing crime, reforming our prison system, and saving taxpayer dollars. The First Step Act is a landmark piece of legislation that will implement evidence-based reforms in the notoriously inefficient federal justice system.

These reforms, which have been tested in deep red states such as Texas, Florida, South Carolina and Georgia, have been proven to reduce crime through lowering recidivism rates, that is, prisoners reoffending upon release. By reducing recidivism, the First Step Act reduces crime. Approximately 95 percent of prisoners within the federal prison system will eventually be released to return to their communities. The reforms in the First Step Act help ensure that upon release, former prisoners are prepared to reenter society, not to commit another crime.

The First Step Act will achieve lower rates of recidivism by allowing qualifying prisoners who have a low- or minimal-risk of recidivism to use time credits earned through successful completion of tailored recidivism reduction programming. Prisoners who participate in this programming, such as learning a trade or earning a degree, are more likely to find gainful employment and lead a stable, crime-free life upon release.

Thanks to the broad, wide ranging support from both sides of the aisle, as well as law enforcement and faith based groups, Congress has the opportunity and the backing to pass further criminal justice reform in the future. As President Trump said at the bill signing, “This is the first step, but there’s going to be a second and a third, and possibly a fourth.”

There is still much to be done. Congress needs to keep the ball rolling and pass bills that will continue to focus the criminal justice system on rehabilitation and reentry and steer the system away from abusive practices such as civil asset forfeiture and rampant overcriminalization. In the last Congress, multiple bipartisan bills were introduced that would have achieved many of these ends.

Fortunately, reauthorization of the Juvenile Justice and Delinquency Prevention Act was signed into law the same day as the First Step Act. This legislation ensures that we do not recklessly overexpose juveniles to the criminal justice system, which often contributes to recidivism. The Second Chance Reauthorization Act and the MERCY Act also became law as components of the First Step Act. However, most of the other bills went untouched.

Legislation like the Renew Act, the Clean Slate Act, and the Fair Chance Act would enhance the reforms in the First Step Act by breaking down barriers to reentry, including the simple existence of a criminal record, that still prevent rehabilitated offenders from re-entering society as productive citizens.

Unfortunately, many of the Republican champions of these meaningful reentry measures such as Reps. Trey Gowdy (R-S.C.), Rod Blum (R-Iowa), and Darrell Issa (R-Calif.) will not be returning to Congress in 2019. It’s critical that new members in the 116th Congress take up these torches immediately. Furthermore, abusive practices in the criminal justice system are still prevalent, most notably the presence of civil asset forfeiture and overcriminalization. Civil asset forfeiture is used by law enforcement to seize property suspected of being connected to criminal activity, under the assumption of guilty until proven innocent, which is a gross inversion of due process.

To this effect, widely-supported legislation has been introduced to increase the evidentiary standard required to seize property. These bills include Rep. Jim Sensenbrenner’s (R-Wisc.) Due Process Act, as well as Rep. Tim Walberg’s (R-Mich.) and Sen. Rand Paul’s (R-Ky.) Fair Act. Currently, the Due Process Act has 25 bipartisan cosponsors in the House, and the Fair Act has 55 in the House and seven in the Senate.

Similarly problematic for due process is the lack of a guilty mind, or “mens rea” requirement for an overwhelming number of federal crimes. There are somewhere between 4,500 and 5,000 federal statutes carrying criminal penalties and over 400,000 federal regulations that may be enforced criminally. Although the issue of mens rea is divisive between parties, it is imperative that all sides recognize there must be a default mens rea standard in order to obtain a conviction lest overcriminalization continue to run rampant in our system. Legislation like the Mens Rea Reform Act would accomplish this by implementing such a standard.

At the outset of the 116th Congress in January, returning and new members alike should turn their attention to these important next steps. There is still much to be done to bring the full gamut of successful state criminal justice reforms to the federal level. Fortunately, the stage has already been set, and overwhelming support for further reform is certainly there.