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Legal Learning: Is bipartisan criminal justice reform possible?

James Manahan

The Republicans and Democrats in Congress couldn't get much accomplished during 2018 — "compromise" has not been a popular word lately. However, in December, they did manage to agree on two big changes in the criminal law.

The first was the Juvenile Justice Reform Act of 2018, passed by Congress and signed into law by President Donald Trump on Dec. 21. In the House, the bill was sponsored by former U.S. Rep. Jason Lewis, R-Minn., and U.S. Rep. Bobby Scott, D-Virginia, and in the Senate by U.S. Sen. Sheldon Whitehouse, D-R.I., and U.S. Sen. Charles Grassley, R-Iowa — a rare bipartisan action.

The original Juvenile Justice and Delinquency Prevention Act (JJDPA) was passed in 1974. It required states that accept federal funding to provide four core protections for youths:

• One protection is a limit on locking up youths for status offenses, such as skipping school and missing curfew;

• Second and third are requirements to generally keep juveniles out of adult jails and to separate them from adult inmates;

• A fourth protection addresses racial disparities by requiring data collection.

The JJDPA was 10 years overdue for reauthorization, which has now been achieved thanks to bipartisan action in Congress and lobbying by the American Civil Liberties Union (ACLU).

U.S. Sen. Tom Cotton, R-Ark., had held up the bill because he wanted judges to have discretion to lock up youths for status offenses if they violate court orders. A compromise now establishes a seven-day limit on such lockups.

More than 7,000 young people are incarcerated annually for committing status offenses, so it is hoped that this number will be reduced in the future.

It's a huge bill that was passed — 73 pages long. It includes improved treatment for youths with mental health and substance-abuse issues and many other reforms. Substantial money is appropriated for complying with the act. Only three states — Wyoming, Connecticut and Nebraska — do not participate in JJDPA.

The second important new law passed last month is the First Step Act. Credit goes to Republicans like U.S. Rep. Doug Collins of Georgia and Jared Kushner, who persuaded his father-in-law, President Trump, to sign the bill, also on Dec. 21. Support from the ACLU and the Koch brothers was also essential to getting the bill passed.

The new law shortens some sentences, including a reduction in the sentence for third-strike crimes from "life imprisonment without release" to "a term of not less than 25 years."

The law also allows offenders to qualify for "safety valves" in which judges have the authority to bypass mandatory minimum sentences.

Another provision allows offenders to apply for retroactive application of a 2010 law that reduces the 100-to-1 sentencing disparity between crack and cocaine offenses. Inmates will be able to earn credits toward early supervised release by completing programs to reduce recidivism.

There will now be compassionate release for the elderly and terminally ill, and solitary confinement for juveniles is eliminated. The practice of shackling women during childbirth is banned, and inmates will be placed closer to their families.

Unlike the Juvenile Justice Act described above, the First Step Act will only affect inmates in federal prison. Right now that means about 181,000 people, a small fraction of the total jail and prison population of 2.1 million in America (about 87 percent of prison inmates are held in state facilities, plus hundreds of thousands in local jails).

U.S. Sen. Cotton was the principal opponent of this bill, also. He argued that America actually has an "under-incarceration problem," even though the U.S has by far the highest incarceration rate in the world. Our rate is 593 per 100,000 people, compared with Canada (114 per 100,000), Germany (75 per 100,000) and Japan (41 per 100,000).

The ability of the two parties to work together to achieve these reforms is something we can hope to see again during 2019. But don't hold your breath.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at jimmanahan@gmail.com or jamesmanahan.com.