One First Step for Prison Reform—One Triumph for Human Empathy

On December 18, 2018, the US Senate passed the First Step Act, a measure previously passed by the House of Representatives. Its passage was the culmination of five years of political arm wrestling that started with the Obama administration and was supported by the Trump administration. On December 21, 2018, Donald Trump signed the First Step Act into law. This new sentencing and rehabilitation law applies only to federal crimes and incarceration. For nonfederal offenses, states have jurisdiction over criminal justice and prison reform within their borders.

While the Trump administration can take a victory lap on the passage of First Step, as I pointed out in my post Prison Reform, Politics, and Kushner: A Curious Amalgam, passage by a fractured yet bipartisan consensus is an unusual win. The federal prison reform movement originated with Barack Obama, and the notion was not torpedoed by Trump, in his usual fashion, in order to scrub Obama’s legacy.[1] Trump stumbled into prison reform through the combined efforts of bipartisan yeomanship strongly influenced by his son-in-law Jared Kushner’s personally driven tenacity on federal prison reform issues.

Empathy Carries the Day

In her recent New York Times article “How to Be More Empathetic,” Claire Cain Miller describes empathy as “understanding how others feel and being compassionate towards them.” According to Miller’s report,

 It happens when two parts of the brain work together, neuroscientists say—the emotional center perceives the feelings of others and the cognitive center tries to understand why they feel that way and how we can be helpful to them.

Applying the empathy principles to the First Step legislation, the Senate and House of Representatives have combined the part of the brain that effects human emotions[2] with the part that controls the processes of rational thinking.[3]

According to GoodTherapy.org,

Some fundamental assumptions of humanistic psychology include

• Experiencing (thinking, sensing, perceiving, feeling, remembering, and so on) is central. . . .
• An accurate understanding of human behavior cannot be achieved by studying animals. . . .
• Self-actualization (the need for a person to reach maximum potential) is natural.
• People are inherently good and will experience growth if provided with suitable conditions, especially during childhood.
• Each person and each experience is unique, so psychologists should treat each case individually, rather than rely on averages from group studies.

Of all the causes and special interest measures brewing in legislators’ heads and the failure of the Trump administration to pass humanistic legislation—including healthcare and immigration reform—one would expect the passage of major federal criminal procedure and prison reforms would be sidelined. The contrary is true: the key to the success of First Step is Jared Kushner. But why him? Why does he care?

The Kushner Kiss

It comes down to what prison reform means to Kushner. As I wrote earlier,

prison reform means different things to people. People with no direct or indirect experience with any prison or jail system are only media schooled on criminal justice foibles and beleaguered incarceration conditions. Our points of view dictate the meanings we assign to our subjective beliefs. The problem with the phrase prison reform is that it’s far from exact. In an inexact and complex world, politicians can skew the intended meaning and words and phrases. As you’ll see, putting prison reform and politics together opens a whole new vista for chopped word salads.

In What Does Prison Reform Mean?, I took a closer look at what prison reform means to people in our lives and to those we’ve never known. Kushner falls into what I describe as a Category Three: Vicariously Exposed person—one who has “had experience with prison through someone they love or care about.”

Kushner’s father was convicted on federal charges in 2005 for witness tampering, illegal campaign contributions, and tax evasion. Charles Kushner served fourteen months in a federal prison. By all reports, [Jared’s vicarious] exposure to criminal prosecution [and the incarceration of his father] was a hardship on [him and] the [extended] family.

Herein lies the only reason for the ultimate passage of the First Step Act. Kushner’s empathy for the plight of federal prisoners acted as a catalyst for an otherwise unlikely major piece of legislation for the Trump administration, truly a rare victory for this inchoate president.

The First Step Act

The First Step Act has five titles that significantly move criminal justice and prison reform in the right direction. Like most pieces of legislation, it is not a perfect law, and a second and third step are anticipated. But for now, the five titles are

1. Recidivism Reduction

• The mandate here is to determine “which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism.”

2. Bureau of Prisons (BOP) Secure Firearms Storage

• Requires the BOP to “ensure that each chief executive officer of a Federal penal or correctional institution . . . provides a secure storage area located outside of the secure perimeter of the institution for employees to store firearms.” This title contains other provisions allowing BOP employees to carry concealed firearms.

3. Restraints on Pregnant Prisoners Prohibited

• “Use of restraints on prisoners during the period of pregnancy, labor, and postpartum recovery [is now] prohibited.” Although restraining women during pregnancy and while giving birth is intuitively repugnant,[4] only two states, California and Illinois, have a law forbidding the practice.

4. Sentencing Reform

• Federal judges will have more discretion to bypass mandatory minimums and lighten drug sentences. This impacts the sentencing disparity between crack cocaine offenders and powder cocaine offenders.
• The new guidelines are expected to have a significant effect on African Americans, who have faced higher incarceration rates for drug crimes than white offenders.
• The new law eliminates the “three strikes” penalty that requires offenders to face life in prison after committing a third crime.
• Note: the law limits most of those changes to future offenders, not to any of the 180,843 current federal prisoners in the custody of the BOP.[5]

5. Miscellaneous Criminal Justice

This title addresses thirteen issues of importance, including

• Incarcerating inmates close to families
• Allowing home confinement for low-risk inmates
• Amending the Federal Inmate Reentry Initiative and modifying sentences
• Expanding inmate employment through Federal Prison Industries
• Limiting juvenile solitary confinement at a juvenile facility to between thirty minutes and three hours, depending on the risk factors determined for a particular juvenile

The First Step law has many complicated elements that cannot be fully discussed here. In future posts, I will highlight sections of the law and the results of implementation. Expectations are that the law will expand inmate job training to reduce recidivism among federal prisoners. A detailed reading of the law shows the legislative intent of expanding early release programs and the long overdue modification of sentencing laws, including changing or eliminating mandatory minimum sentences for nonviolent drug offenders.

Conclusion

The conflation of a taciturn approach to federal prison reform and the ideals of an empathic approach by Jared Kushner has culminated in the first steps for bringing about an overhaul of the federal criminal justice and incarceration systems. Without that element of caring about other human beings and understanding how others feel, I am convinced that this first step toward change would not have made it to a vote.

In a time when Congress is stymied in its efforts to do what’s right for people in need (e.g., universal healthcare, intelligent immigration reform, and tax relief for the masses), this glimmer of legislative hope for the future is a bright insight into what governing with a heart and soul looks like. My optimism, however, is tempered by the reality of our being governed by an errant president and administration with fleeting attention spans for the basics of human needs that yearn for an empathic approach.

Your comments and suggestions are always welcome.

Image courtesy of 123rf.com

[1] For a comprehensive review of Obama-era rules, regulations, and legislation rolled back by Trump during his first year in office, see the Washington Post article entitled “How Trump Is Rolling Back Obama’s Legacy.”

[2] The limbic system is the part of the brain that controls human emotions. For example, understanding that time in prison has significant negative emotional impact requires humane amelioration and change.

[3] The cognitive process “allows us to organize and understand the world through stimuli that we receive from our different senses, like sight, hearing, taste, smell, and touch.” For example, reasoning that being imprisoned has negative impacts on inmates, family relations, and the economy and contributes to a loss of the intelligence and talents of the confined uses the cognitive process.

[4] As reported by the New York Times in 2006, “many states justify restraints because the prisoners remain escape risks, though there have apparently been no instances of escape attempts by women in labor.”

[5] There are approximately 2.4 million people incarcerated in the United States, the vast majority in state custody.