Next Steps in Justice Reform After the First Step Act Amid COVID-19 Crisis

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The COVID-19 crisis has exacerbated strains on all parts of our justice system from police officers on the frontlines to federal prisons. With the passage of the First Step Act signed by President Donald Trump in December 2018, the federal government moved in the direction of dozens of states that have sought to reduce the size, scope, and cost of their systems while still protecting public safety. Amid the current crisis, calls have grown to take additional steps at the federal, state, and local levels, as many advocates worry about the impact of COVID-19. For example, U.S. Attorney General William Barr has ordered the release of hundreds of elderly and infirm individuals based on geriatric release provisions in the First Step Act and the most recent $2 trillion economic relief bill. As further actions are considered at all levels of government, join this call as we assess the impact of the First Step Act and what next steps are possible based on public safety and public health considerations.

Featuring: 

Marc Levin, Chief of Policy & Innovation, Right on Crime, Texas Public Policy Foundation

Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute

Arthur Rizer, Director, Criminal Justice & Civil Liberties; Resident Senior Fellow, R Street Institute

 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society’s practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls become a Federalist Society member today at fedsoc.org.          

 

 

Greg Walsh:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is titled “Next Steps in Justice Reform After the First Step Act Amid COVID-19 Crisis.” My name is Greg Walsh, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us Marc Levin, the Chief of Policy & Innovation at Right on Crime at the Texas Public Policy Foundation; Rafael A. Mangual, the Fellow and Deputy Director of Legal Policy Contributing Editor at the City Journal for The Manhattan Institute; and Arthur Rizer, the Director of Criminal Justice & Civil Liberties and Resident Senior Fellow at the R Street Institute. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Mr. Levin, the floor is yours.

 

Marc Levin:  Thank you and thanks to everyone for joining us. So today we’re going to talk about the First Step Act and the second steps in light of the COVID-19 crisis that we’re facing that has certainly posed a number of challenges for really every aspect of the criminal justice system. And I’m really thrilled that two of my very good friends and brilliant writers, Arthur and Rafael, will be making comments after I make some initial remarks. And then we look forward to the questions from all those who have joined.

 

Well, with regard to the First Step Act, I have to admit I’m rather biased on the subject. I was very involved, along with my organization, in trying to move that forward. But I have to say so many other groups were engaged as well, so certainly not here to take credit. But what was interesting really was how it began, which I give a lot of credit to Jared Kushner because he convened both organizations and experts from the right and the left, reentry providers.

 

I remember some meetings going back to October 2017. He wanted to hear from people like those that have the Code for America, the programs that teach prisoners how to code so as soon as they get out of prison they’ve got a job with doing something that’s really productive. So he just absorbed a lot of different perspectives.

 

And I remember back in that time, of course, Attorney General Sessions was Attorney General. And one area where there really was commonality with Attorney General Sessions was on the issue of reentry, on making it less likely that people coming out of prison, given 99 percent of folks who go in do come out, would be less likely to recidivate and more likely to have positive outcomes, such as employment. And one of the other things that was really critical was the role of state reforms that had been successful, particularly in red states in reducing both crime and incarceration.

 

And a lot of those centered around just putting—what we did in Texas—putting the resources in place so there were drug courts, for example, and there was mental health treatment, particularly for dealing with non-violent individuals who might otherwise be sent to prison simply because prosecutors and judges were saying we don’t have the alternatives available. So that really informed the First Step Act and not only from a policy perspective but also from the perspective that a number of members of Congress, like Doug Collins of Georgia, Tom Tillis of North Carolina -- they were actually state law makers before who had helped implement successful reforms in their states of Georgia and North Carolina. And of course Senator Cornyn from Texas was very familiar and often cited the Texas efforts that have resulted in ten prisons being closed and now a crime rate decline of more than 30 percent.

 

So given the focus on reentry, perhaps it wasn’t surprising that the initial House bill was solely focused on the back end of the system. And that entailed earned time for completing programs and also making a fix to a statute on good time, which essentially the Bureau of Prisons had interpreted differently than what Congress had intended, resulting in kind of short fall each year that then accumulated versus what Congress had said people could earn through good behavior before. So it was a very technical fix.

 

Now, once it moved to the Senate, there was bipartisan support lead by Senator Mike Lee and Patrick Leahy to put in place some drug sentencing reforms that had been talked about in the Senate Judiciary Committee for a number of years going back to the Obama administration. And ultimately, that manifested itself in terms of a safety valve for judges that parallels what a number of states like Georgia have implemented and also a modeled policy of the America Legislative Exchange Council to say, in low level drug cases, a judge could depart from the mandatory minimum through this safety valve if they cited -- could be based on a variety of factors. The mandatory minimum in the judge’s view would be unfair.

 

And there were certain limitations like the person can’t be a gang leader, and they can’t have a certain number of criminal history points from serious prior offenses. And then it also ended the life in prison possibility for repeat non-violent drug offenses. So there were various other provisions, as well, some dealing with solitary confinement, medical parole, which was actually expanded, and we’ll touch on that soon in the CARES Act also and now through a memo by Attorney General Barr. But of course, as with any federal or state law, there’s always going to be challenges in implementation and delays.

 

But overall, in my view, DOJ has done a good job. One of the biggest challenges was getting in place the risk assessment, which under the legislation those who were in the highest risk categories aren’t eligible for the earned time provision for completing programs. Now, that’s a very debatable proposition given that you could argue that people with the most risk actually most need to be in recidivism reduction programs. But for reasons of getting enough votes in the Senate, that’s how it was passed.

 

So the Bureau of Prisons had to develop a risk assessment. And to their credit, they sought input from lots of different external organizations and experts and ultimately made some changes to it. And working with the Hudson Institute, they finalized that, called the Pattern Risk Assessment. And I think, overall, it’s strong. I think it still relies a bit too heavily on static factors, meaning criminal history, that someone can’t change. But I think they did a good job by and large of producing something that does track with the best data available.

 

So now, of course, what’s really interesting is, as some of you may remember in December of 2018, this was right up against the New Year, during the Christmas holiday when this First Step Act was finally enacted. And there was a real sense with the Democrats taking over the House the following year that the bipartisan very fragile agreement with lots of concessions and things on each side -- that that would break down if it didn’t go through. And lo and behold, we ended up 2019 being consumed with impeachment and now this pandemic.

 

So I think most people would probably say that, if it hadn’t gotten pushed through -- which President Trump called a number of Republican Senators, obviously leaned into the Senate leadership to go ahead and schedule it because there was a real competition for floor time. So it was really -- it turned out to be even more auspicious than those of us supporters of it knew at the time.

 

So I just want to wrap up by talking a little bit now about how we look at the second steps. And obviously, the COVID crisis has kind of focused attention on particular areas. And I think it’s for obvious reasons.

 

People in prison, just like nursing homes, are at a greater risk of this. And it’s not just those that are incarcerated but also correctional officers who, of course, go home to their families or are in the communities. And we’ve seen in Texas also where the prisons are located there’s typically very little hospital capacity. So anyone who does get sick is going to be competing with resources -- competing for the same resources that those who live in those areas are.

 

So obviously, it’s important not to have blanket releases but to have individual review, and, of course, medical or geriatric parole policies have always been anchored in carefully looking at the person’s risk level. And in many instances, the person’s illness or disabilities mean they actually aren’t even in a position to commit a crime. Obviously, recidivism studies show the elderly have very low, 2 to 3 percent, recidivism rates.

 

So that’s certainly an area that -- where there’s been great interest, and that is where Attorney General Barr has issued two memos. And there was a provisions in the CARES Act that I referenced that dealt with geriatric release as well. And of course, protecting the prisons themselves -- and we’ve seen around the country different examples of inmates making masks and sanitizer. And we certainly believe that many of those departments have said, yes, he’s not just make it for folks on the outside, but correctional officers and inmates themselves get to use these supplies as well.

 

Cite and summons, which I know is something Arthur’s written quite a bit about, is another really good example. And I think people across the kind of criminal justice policy spectrum can agree that arresting people for unpaid fines and fees, for example, and booking them into jail -- that’s a lot of risk for both the officer and the person and without really much gain, especially at this time. So one of the things that’s really, I think, a great concern now is there’s some states, Wisconsin and Texas, where they’ve said the prison system is no longer accepting admissions from the county jail.

 

So that puts the sheriffs in a real bind because at least the prior law in Texas had been within 45 days the state has to pick up that person that’s been sentenced for a felony and put them into prison. That law’s been suspended now so that could lead to a pile up if we don’t reexamine who’s coming into jail to begin with. And then, of course, areas such as virtual court hearings and areas like occupational licensing reform there’s been a lot of, I think, unnecessary regulations that have been weighed.

 

And we worked along with those on this call on issues in terms of people with unrelated prior convictions. And about 15 states over the last five years have passed laws to make it easier to get an occupational license. So there’s a lot of challenges but also a lot of opportunities presented by this crisis. So with that, let me just, I guess, turn it over to Rafael and then Arthur. Thanks so much.

 

Rafael A. Mangual:  Thanks so much, Marc, and I appreciate your comments, a lot of which I agree with. I think I’ll start by just kind of -- with the COVID point. I think the COVID pandemic may very well render the release of some prisoners prudent -- the prudent policy method for us to pull right now. But I think this has to be understood as, at its core, an epidemiological argument. I think whether prisoners should be prematurely released onto parole or from custody entirely due to the COVID crisis or not arrested in the first place should really turn on the risks associated with those policies, both in compared to the risk of keeping certain inmates inside and the costs associated with those risks.

 

I think, especially when it comes to the risk of spread to the community, we really ought to be very careful about that. And I don’t pretend to have those answers or the expertise to provide them. But I do think it’s very much a two-sided coin, and that’s really important to consider.

 

I think there really is some helpful information out there. We know, for example, that both state and federal prisoners as a whole a very, very likely to reoffend. When you disaggregate those populations, you’ll see various subsets whose release risk is particularly elevated. I do think, despite Marc’s comment about some of the static measures in risk assessment, that the best predictors of elevated recidivism based on the literature that’s out there today tend to be age and criminal history. And until I think we find a more predictive way to assess that kind of risk I think we have to kind of stick with those.

 

Now, particularly when it comes to criminal history, the federal prison population does seem to have a more kind of low risk set of inmates in its ranks. If you look at the average number of prior arrests among federal prisoners, it’s about five. And if you compare that to state prisoners, that number’s about ten.

 

Interestingly, recent data that was released by the Bureau of Justice Statistics under the First Step Act indicate that those designated as low risk inmates have committed fewer infractions in 2018 than those designated as medium- or maximum-security risks. But interestingly, the medium security risk inmates committed significantly more infractions than the high security inmates. So it’s not yet clear whether the designations will, one, accurately predict recidivism or, two, whether the differences between state and federal inmates that I mentioned earlier would render some of the sort of First Step related data applicable to expansion into the state system, which is what I think a lot of people have sort of called for as the next steps.

 

The other thing that’s interesting, too, about the infraction data within the federal system that’s been published under the First Step Act so far is that it’s not really clear how those infraction numbers compare to prior years. As Marc mentioned, one of the elements of the First Step Act was to reduce the rate at which inmates could be placed in punitive segregation, otherwise known as solitary confinement. And so it would be really interesting to see if some of the data that’s being gathered could be sort of routed around answering the question of what role, if any, this has played in sort of safety of prisons in the federal system.

 

I mean, in New York, we’ve had a little bit of an experiment with this starting in 2014 within the New York City jail system. Mayor DeBlasio took solitary confinement off the table for all inmates under the age of 21. In the subsequent years, the rate of violence, both inmate on inmate violence as well as inmate on guard assault, increased dramatically, almost exponentially such that when, in 2018, the average daily population in the New York City jail system was just under 8,000 inmates, there were about 6,000 inmate on inmate fight/assault infractions.

 

And that was actually the same number of those types of infractions that the city jail system saw in 1998 when the system’s population was over 17,000, which is more than 10,000 additional inmates. So at least based on what we’ve seen here in New York, there does seem to be some serious risk with dramatically reducing the rate at which inmates are placed in punitive segregation as a response to various kinds of infractions on the inside.

 

Based on all this, I think that the right next step here really is to wait and see what the data show as more and more gets released under the First Step Act and what inferences thorough evaluations of those data support. And I think that has to be done kind of before expanding that project.

 

One interesting problem that I do think the COVID pandemic has revealed that hasn’t yet been mentioned is the problem of correctional capacity. Right? I mean, one of the reasons that spread is such a concern within correctional settings is -- really boils down to the reality that practicing -- implementing a real kind of social distancing policy within a correctional setting is all but impossible. And that’s largely a function of how many inmates are in and packed so closely together.

 

Marc mentioned as a positive the closing of various correctional facilities in Texas and in other states. New York and California have done quite a bit of that. New York’s jail system capacity has been reduced radically. And as we know, the result of that has been that inmates are really kind of sleeping on top of each other.

 

So in New York City for example, you’ve got about 40 inmates to a room in bunk-style settings. And that really isn’t conducive to reducing the spread of a disease like COVID-19. And one of the reasons that that’s still the case that inmates are still sleeping 40 to room, for example, despite the fact that the city’s jail population has been reduced by 50 percent over the last 15 to 20 years, is that capacity has also been reduced alongside that.

 

So I do sort of worry now, in light of the COVID pandemic, what we should make of calls to pursue the goal of reducing correctional capacity by closing jails and prisons in order to save money. Again, it might make some short-term fiscal sense. But I think we’re seeing now that there are some challenges associated with that that we’re not quite prepared for. So it might actually be a good idea to have some extra capacity on the side.

 

So yeah. I mean, those are really the main concerns I have right now. But I do think that the First Step Act largely has, you know, some positive aspects to it. But I think a good reason for why the federal population is such a good place to start with this kind of public policy experiment is I think, as I mentioned before, there’s relatively reduced risk that federal inmates tend to pose to the public as compared to state inmates. That doesn’t mean I don’t think we can learn anything from what happened and what data comes out of the implementation of the First Step Act.

 

But I do think that that does place some limits as to what we can infer from that data that would be useful in terms of expanding this project into the state system, which, as I’m sure many of you on the call know, is where close to 90 percent of our incarcerated population lives. So yeah. I think I’ll just leave it and pass it on to Arthur.

 

Arthur Rizer:  Yeah. Thank you. I think I’ll start from kind of where Marc left off and tie some of Rafael’s comments in here. I think all three of us come from the same perspective, come from the same starting point, which is public safety should prevail. Everything that we do should come from the lens that we have to have public safety at the tip of the spear.

 

I think what COVID has done is it has changed what safety means because it isn’t just safety from crime anymore. We also have to think about safety from this disease. As a great nation, we have to think about safety for the individuals that are incarcerated. That is literally what defines us as a people is that we care about everybody despite the crimes they have committed. They still are entitled to at least not be put in a situation where they’re going to get sick and die in a hole. So I think that is something that we should start with.

 

As it relates to the First Step Act -- and I also am very proud that I worked on this with Marc. He was a great leader. I was happy to be one of his foot soldiers on this initiative. There are some things within the First Step Act that directly—and Marc touched on some of these—that directly helped with COVID. Specifically, it expanded who could qualify for release into confinement through the detention pilot program. And then it also reduced the eligible age from 65 to 60.

 

I think that something that Rafael said that is directly on point is age is one of the best determiners for recidivism. Not to be cheeky, but just for the same reasons that people age out of making blanket forts and they age out of skateboarding, people age out of crime. Another great factor is people who are ill. People who are sick don’t commit crime for obvious reasons.

 

The First Step Act also did some very specific things as it relates to just who would be eligible for the type of release programs. But I would say that one of the issues with compassionate release is last year, before there was any type of pandemic, there was 1,700 inmates that applied for compassionate release. And only 55 were approved. And 41 of those individuals -- 41 people died before the Bureau made a decision. So that is a -- I would admit that is an unfair statistic because, you know, we’re not able to look at all 1,700 inmates and determine whether they were eligible. But I think it does indicate that we have to do a better job at greasing the rails to ensure that the system works better.

 

But what First Step really did, in my opinion, is it helped set the stage for additional reforms. And it helps with other statutory provisions that were already in place an helped improve those. So even looking at the CARES Act, the Coronavirus Aid Relief and Economic Safety Act, that builds upon the First Step Act. A lot of the language that they took for that were things that people were arguing during the First Step Act. It actually helped with the -- this bill passing because they’d already debated many of these provisions.

 

So one of the things it did, it lengthened the maximum number -- amount a prisoner can be placed on home confinement when the Attorney General finds that emergency conditions will effect BOP’s functioning. That gave the power to the Department to make those kinds of decisions, and that’s a good thing to happen. There’s other statutory provisions that allow for some type of release. 3582 allows the federal courts to come in for extraordinary reasons to reduce a sentence.

 

And there are some lawsuits going on right now that are trying to explain and define what that means. But that same statute also has an “or” provision that allows a prisoner who is at least 70 years of age and has served 30 years of the sentence and BOP has not determined them to be a specific danger to be released. There are also limits on whether a prisoner can be released from BOP’s custody during a compassionate released. So BOP can’t unilaterally make those decisions under its authority. It has to be -- it goes through a federal court. So there’s kind of a check and balance kind of built in.

 

Another provision that I think is important is 6541, which gave BOP the ability to release individuals who are terminally ill and meet some other statutory requirements on home confinement. There’s also provision 3624 which increases the use of halfway houses. So all that is to say that there is a lot -- there’s a lot of tools for the federal government to use in order to expect how this pandemic spreads within the system. And most states have similar provisions, not all, but most do.

 

There’s also a bill right now that expands how CARE and First Step view certain of their provisions and increases -- expands to individuals -- women that are pregnant. It also looks at lowering the age to 50 and other medical conditions. That’s something that’s still in the Senate. I’m not sure what the likelihood of that passing is.

 

I think something that’s also really important when it comes to the First Step—and I think, personally, it’s the most important aspect of First Step—is it really did set the stage for movement in the states. For instance, Florida passed a provision this year that they’ve been trying to pass for a long time that changed their felony threshold. So it actually helped prevent people going to prison that probably shouldn’t be there. So that would not have happened, I don’t believe, without the First Step Act being enacted. In fact, they called Florida First Step Act. So I think that’s pretty clear that wouldn’t have happened. But you have governors in red states, in Oklahoma and Ohio, looking at their own provisions in order to get people released that don’t need to be there.

 

And the last thing I’ll say before turning it over to our moderator for questions is I think something that COVID has done that -- I say this -- it’s kind of weird to say it’s an opportunity. But it is an opportunity for us to test some of the theories that many on the center right reformers have been talking about, that you can put less people in prison and not see a spike in crime. I think there’s also danger that goes along with that, too. I think we’re on a knife’s edge where we have a long history in this country of looking for, you know -- for people to point fingers at when things don’t go well, when the economy crashes, when we go to war. We very often will roll the ball to the lowest common denominator and that very often ends up being people with criminal history records.

 

So I think we need to be very cognizant of when people are released there needs to be something to be released to. I do agree with Rafael in some of his writings where this idea that we’re just going to release people with no real plan on what to do with them is a recipe for disaster. There has to be some type of thought about what that means. What does release actually mean?

 

If they’re being released into a place where they have no job, they have no opportunities, I think it doesn’t take a lot of forethought to conclude that recidivism is going to be very high for those individuals because recidivism is relatively high to begin with.

 

So I think those were kind of my overarching comments. And I’ll conclude with I think, ultimately, if we just focused on parsimony, we would go a long way. And what I mean by that is, you know, we need to prioritize safety in a pandemic, absolutely. But people shouldn’t be incarcerated longer than what is required to hold that person accountable for the crime or to ensure there’s rehabilitation.

 

And lastly, when we talk about quarantined individuals in prison, we have to understand that’s a double-edged sword because if using solitary confinement in a prison is our answer for individuals who are incarcerated, we know that people are going to hide from testing because that is a punishment. So we have to -- I’m not saying that we shouldn’t do that. I’m saying that we have to be eyes wide open about what are the consequences if that is our only answer for individuals who are incarcerated is solitary confinement because that does end up having some drawbacks to it.

 

Greg Walsh:  Okay. Let’s give each speaker a chance now to respond to what their fellow panelists said. So Mr. Levin, back over to you.

 

Marc Levin:  Oh, sure. Well, as I anticipated both Rafael and Arthur had a lot of very keen insights, and we have the pleasure of working together on many issues. But a few things, I just wanted to talk about some of the issues in terms of people that are being reviewed now in light of -- and I think there’s about nine governors that have taken some sort of actions to try to expedite or enhance the reviews of individuals who could be safely released. Obviously, the medically fragile and geriatric individuals that have been touched on a lot are part of that.

 

And I think it was Arthur or Raphael, someone referenced the fact that a lot of times someone will pass away while they’re in many months of review. And that’s been true in Texas with the medical parole. So there’s definitely a lot of opportunity there. And then some systems are also looking to be released within the next few months.

 

In Texas, many times when someone’s approved for parole it’s on condition of completing a certain program. And maybe in some instances those programs could be completed on the outside. Although, of course, there’s social distancing issues with parole and probation supervision that are out. But I think particularly, as you have correctional officers maybe not being able to show up to work because of being ill, it creates issue with delivering programs in prison that may be a condition for release. So it is a very challenging circumstance.

 

One of the things, of course, there’s great interest in is clemency, both at the federal and state levels. And President Trump issued some commutations several months ago to a variety of individuals. Some were white collar. Some were drug offenders. And one of the interesting things is, of course, with regard to the First Step Act, the drug sentencing provisions were not retroactive. There’s a provision making the reduction in crack pattern disparity that was in a bill many years ago, making that retroactive. But the new drug sensing reforms were not retroactive. So that means there’s people in federal prison who wouldn’t be there if they have been sentenced under the current [inaudible 00:30:35]. That’s certainly an area that I think is fruitful to look at.

 

I think the assessment issue is very interesting, the pattern assessment that was referenced that the Bureau of Prisons is using. And certainly, I think we all agree criminal history is important. But one of the interesting things that people may not realize is that through these assessments now there’s an ability to really look at somebody’s attitudes. And that’s really highly predictive. And it’s often referred to as criminogenic attitudes. But those can include anti-authority, anti-social attitudes. And these can be assessed. And so it’s also helpful to see if whatever programs your providing are actually moving a needle in terms of how someone thinks.

 

I think that the reality is a lot of the attitudes that are correlated with criminal activity are impulsivity and a lack of empathy, and, again, anti-authority and anti-social attitudes. So if you can change those -- and obviously, there’s other issues: addiction, mental illness, but these particular criminogenic attitudes are really, really important. And that’s why a lot of interventions, like cognitive behavioral therapy, motivational interviewing, they’ve shown a lot of promise.

 

So one of the interesting things we haven’t touched on that may be relevant for people to consider is obviously the effect of COVID-19 on crime rates. And I think most of what the date we’ve seen from places like Detroit, Chicago do show that street crime has declined. But there have been increases in domestic violence. And that, perhaps, isn’t surprising, but it’s certainly very concerning. And obviously, that’s -- the domestic violence increase is something that we certainly need to address.

 

Just another -- I think Rafael made a great point about the way that many prisons and jails are designed. And some of us, like Arthur and I, we’ve gone to look at prisons in Germany, and we saw how different they were. You never had a situation where 40 guys were sleeping in -- like it would be summer camp for high school students or something. And obviously, it creates a lot of potential, not just in terms of the spread of a virus, but also in terms of conflict, that people that are prone to conflict to begin with -- and that ultimately actually leads to solitary confinement. Because when you have an altercation, that’s often the result. Someone can get banished for months or years to solitary confinement.

 

So there’s a lot of research showing the negative physical and health consequences from that. But certainly, I would say Rafael was right to say that you have to actually -- and this goes back to what Arthur was saying, too, about alternatives for reentry. You have to put in place other alternatives. In the case of solitary confinement, you need to train guards in de-escalation. You need to be able to have other types of sanctions that you can beat out.

 

In many areas in criminal justice policy it's not just -- there’s an old Chinese proverb “It’s better to light a candle than curse the darkness.” You actually have to provide -- you can’t just eliminate things without thinking through what the alternatives are. And I think most systems around the country, they’ve really done a pretty good job in reducing long-term solitary confinement. So the focus now in Colorado -- they’re using it basically 15 days or less at the most. And they’ve had really great results in terms of reduced prison violence. But again, they’ve done it in a very thoughtful way with putting in place alternatives. So anyway, with that, I guess I’ll turn it back to Arthur.

 

Rafael A. Mangual:  Did you say Arthur or Rafael? Sorry.

 

Marc Levin:  Oh, you’re right. Rafael. Sorry.

 

Rafael A. Mangual:  Yeah. I think I’ll probably keep my comments pretty short here and I’ll start with just quickly addressing the interesting decrease in street crime that Marc correctly noted is happening around the country. I think one of the reasons for that is just really kind of comes out of environmental criminology and the work of people like Marcus Felson, for example, who posited in his theory -- his routine activities theory that the three things that need to be present for crime to flourish is you have to have a vulnerable target, a motivated offender, and then the absence of a capable guardian. We know with social distancing policies and stay-at-home orders that we’re probably seeing a pretty significant reduction in the number of vulnerable targets out on the street, as well as probably a reduction in the number of motivated offenders on the street.

 

But one thing to keep in mind is that when these two things do meet, in part because of the number of police officers who are currently sick but also in part because of the policies that have been adopted in the wake of COVID to not go after some of these sort of smaller time offenses and not to be as proactive, there is a greater likelihood that you’ll have the absence of a capable guardian in some of those situations, which can prove concerning. I think as we’ve seen just the last week in Chicago there was a series of retaliatory shootings that took place. And in New York in the last week we’ve had four homicides, which is about 150 percent increase over the same period last year.

 

So there is some potential downside to this. I think Arthur made a really good point that the real key here for this First Step Act is to kind of use it as a test for how much decarceration we can implement without seeing a significant increase in crime. And I think one point that I just want to make in relation to that is, when we are conducting those tests, it’s really important to avoid the temptation to aggregate crime data.

 

And the reason for that is because crime is supposed to be rapidly and demographically concentrated in a really kind of extreme way. With the work of scholars like David Weisburd, for example, he found that in Seattle about 50 percent of crime occurred in just 5 percent of street segments. So when we evaluate the impact of a certain kind of criminal justice reform, it’s really important to use the right measure, right?

 

I think too often what we see are analyses that use state-wide crime or city-wide crime as a measure when the reality is that we really wouldn’t expect much of a change at the state level or at even the city level in response to certain criminal justice policy levers being pulled because not every place is as vulnerable to a crime increase as another. And I think when you look at how crime has responded in the kind of areas where you would expect it kind of change in relation to criminal justice policy, you do see a little more of a delta that can be concerning. And one example of this would be with stop and frisk in New York City. Everyone kind of assumed for a very long time that it had not really affected crime on the whole.

 

But again, David Weisburd, who’s done just an incredible job developing the scholarship on environmental criminology, when he used a microgeographic analysis found that in the areas where -- that constituted crime hotspots, crime was actually quite responsive to upticks in stops and frisks within New York City. Same thing out in California. So you’ve seen a reduction through Prop 47 in the felony threshold for theft. And state-wide assessments have shown that it hasn’t really impacted crime at that level.

 

But again, even the scholars that have done those studies have quite readily acknowledged that that could mask really important variations at the local and neighborhood level, which is, again, where I think we ought to really be focusing those sort of fallacies. So yeah. I think I’ll just give it to Arthur.

 

Arthur Rizer:  Yeah. I think Rafael is actually right. One of my biggest pet peeves as somebody who’s studied criminology at Oxford, who invented the word criminology, I get irritated when people aggregate crime statistics because he’s exactly right. When you look at crime, it is really the flavor of the individual city. And Chicago’s a great example. The vast majority of shootings in Chicago happen within a very small area.

 

It’s like three different neighborhoods. We’re talking about total, like, 20 blocks that create the vast majority of violent crime. Property crime is a little easier to aggregate because property crime has historically fluctuated through this country at the exact same rate. So you actually see a wave of property crime that comes and goes. But for violent crime, he’s absolutely right that you don’t want to aggregate that because it will give you a distorted figure.

 

And I’ve seen it both ways. I’ve seen people that are more Hawk-ish distort the statistics through aggregating crime to show that there is a crime wave. And I’ve also seen the same thing happen on the other side to say that there’s nothing to see here behind the curtain when maybe there is. So I absolutely agree with him on it’s not a safe way to look at what to do next.

 

That’s the only thing I really need to respond to. I think that in the end one thing that I think all three of us believed is that we have to determine and we have to balance these different interests that we have in our society. And I think the First Step Act has done that. And I think that future legislation is going to do that.

 

But public safety, along with the idea that we are a great nation and as a great nation we have to ensure that even those who have done heinous things need to be protected somewhat along with the idea that we want to provide the best opportunities for American people kind of at large -- and I think that we’re in a unique situation where we actually get to test many of those theories in real time. And it’s an exciting time for criminologists0 across this country. It’s also very scary in the sense that I’m afraid that we can have a wave of Willie Horton agendas run through the country using fear tactics and not based on actually knowledge and research that could actually make things worse and roll back some of the reforms that we have fought so hard for. So I’ll leave it at that.

 

Greg Walsh:  Okay. Let’s go to audience questions. Okay. And here’s our first caller.

 

Ed Heimlich:  Hi. This is Ed Heimlich in Austin, Texas. I’m going to direct this to my friend Marc Levin, since I know him. Marc, my study is research analysis and interactive experience with our system has led me to believe that public safety -- well, first of all, crime is not the cause nor public safety the purpose for the criminal justice system we currently have. For the past 50 years, it’s primary objective has been to provide jobs and income for those who profit from it.

 

Now, concerning the COVID pandemic, couldn’t it be because of the pandemic will mean that our government can no longer afford this luxury and we’ll be forced to turn our system to it’s original purpose of actually providing public safety that includes keeping the public safe from the government? That’s my question.

 

Marc Levin:  Thank you, Ed. It’s good to hear from you. Yeah. And I know that one of the issues that you are concerned with, as we’ve talked about it before, is obviously, you know, holding government officials accountable when they violate people’s rights. And sovereign immunity is obviously an issue that many in The Federalist Society have debated and so forth. So it’s a difficult one because, of course, there’s this tension between creating that accountability and creating a deterrent for wrongful conduct by government agencies, by government employees and on the other hand, of course, not wanting taxpayers to have to necessarily be penalized.

 

So it’s really a very difficult issue, but I think there’s a good case to be made that the qualified immunity doctrine, which really doesn’t have much textual support, if any, in the Constitution -- that it’s been extended too far. And obviously, that includes in the corrections and law enforcement context. So one of the things that’s really important, I think, especially in the policing -- police misconduct allegations -- and again, I think most officers do a tremendous job, and that’s also true of correctional officers -- but to make sure that there’s independent and transparent, you know, investigations.

 

And I know, for example, police unions have negotiated contracts where in some cases the officer can’t be questioned in an officer involved shooting for 10 days until after the incident. So there’s certain provisions like that that create kind of a much different landscape than it would if any of us were charged in a shooting. So I think it’s actually to the best interest of not just the vast majority of officers and correctional officers and so forth whose work is impeccable. It’s actually in their interest to make sure that when there’s actual abuses there’s a way to have a remedy. I’ll turn it over to Rafael and Arthur if they have any comments.

 

Arthur Rizer:  I was a prosecutor and a police officer, so I think I have kind of a unique perspective on this. I think -- I mean, I would say carte blanche that I agree with you that I don’t think anybody should have absolute immunity. I don’t like the absolute immunity doctrine. I think that it’s abused by prosecutors.

 

I do think that qualified immunity serves a purpose. I think that it’s something that we should really look at. And the way that I think it was originally thought of where it was trying to ensure that professionals weren’t kicked to death through litigation makes a lot of sense. I don’t think that the way that it’s been applied has given it various -- little teeth, and so it’s kind of hard to use it as a way to keep the balance -- the government -- as a libertarian, I am siftingly suspicious of government. So I hear you. But I think it’s a little bit far to say that it’s the cause of crime.

 

I absolutely think that there is a problem with incentivizing anything that doesn’t make us safer. And if there’s instances that we can point to that say this does not make us safer, I would absolutely advocate to change that. But I don’t know if I would agree with the overarching premise that it is the driver of incarceration in the United States.

 

You look at countries which have much smaller incarceration rates. They have even -- like Germany’s a great example. Their prison lobby is incredibly powerful. And they also have -- they’re completely unionized, completely public servants so they can’t be fired. And they don’t have the same incarcerations we do. So there’s not a direct correlation to it. But I do agree with the idea that people who are servants of the people should be held at a higher accountability, and we haven’t done a great job of doing that in the U.S.

 

Rafael A. Mangual:  Yeah. I’ll just follow up on that really quickly to say, you know, that I largely agree. Look, the question of something like qualified immunity is the right sort of result of a textual analysis is I think separate and apart from the public policy question posed, which is whether it’s actually doing what a lot of its critics say it does. And one piece of research that I think is worth point to is a Yale Law Journal article done by Joanna Schwartz that actually assessed qualified immunity empirically.

 

And in her dataset, there were 979 cases in which qualified immunity could be raised as a defense. And in just 3.9 percent of those cases, qualified immunity was the basis for a whole or partial dismissal. So while, again, I think a very good argument as to whether qualified immunity as a doctrine comports with a proper understanding of the Constitution, I think as a matter of public policy it’s very overstated in terms of its effect on actual litigation.

 

Greg Walsh:  Okay. We will now go to the next question.

 

Caller 2:  I’m calling with reference to -- so during President Obama’s tenure, there was the Fair Sentencing Act in 2010, and a tremendous amount of cases reduced were these drug crimes that were committed, whether they were a mandatory minimum 20-year sentences, things of that nature, the stacking. And so that was in 2010. So then later, before -- I think it was in January 2017. There were like 539 commutations that went down, similarly situated, not the Fair Sentencing Act but these large drug sentences that were a big thing in the early 2000s and late ‘90s where, as a federal prosecutor, you know, you were required to stack charges.

 

So the question I have is -- I’m not commenting on whether that was a good or bad idea. The question I have is have any studies been done with reference to those case to see what the recidivism rate has been as it relates to those cases? And my -- when I look at those, the concern that I have -- because I was a federal prosecutor for a long time. The concern I have is not necessarily the reduction of sentence but the violent crimes as a result of that. And I haven’t seen any studies at all to look at.

 

The recent -- I mean, the clemency of President Trump, those are just too early in time to tell what exactly the effect they’re going to have. But any comments on those? And it’s not necessarily directed at any of the panelists but anybody who has any information. I’d be glad to hear because during the time this was taking place there was a large group of prosecutors who was saying, “I can’t believe they’re doing this.”

 

On the other side, it was like “This is crazy. These are draconian sentences. You’re stacking some guy with 20 years who, in the state court, got a probation on this first drug trafficking crime. And now he’s looking at 20 years.” So you know, there’s an understanding of why that took place. But what do the studies show us from the 2010 Fair Sentencing Act or 2017 when he signed off on those clemencies? Can anybody answer that?

 

Rafael A. Mangual:  Yeah. This is Rafael. I don’t -- I haven’t seen any assessments of the 2010 sentencing -- the format. But I have seen some data that show, you know, recidivism rates among drug offenders specifically, published by both the Bureau of Justice Statistics and the Bureau of Prisons. And especially at the state level, what it turns out to be is that drug offenders are among the likeliest to recidivate compared to those whose most serious commitment charge was in another category like violent crimes or public order offenses, etc. There tends to be a really large amount of overlap between serious drug offenders as well as violent offenders. So I don’t think the categorization always works out quite cleanly.

 

I do think you’re right in that it would be really interesting to see some data analyzing the specific impact of something like the Sentencing Reform Act of 2010 and its retroactive application through the First Step Act. But there’s plenty of data out there published by the Bureau of Justice Statistics on prison recidivism. One would be the 2018 follow up on prisoner recidivism, which was a longitudinal study of a cohort of about 400 plus thousands prisoners released across 30 states. And in that study, what they found, again, was that 76.9 percent of drug offenders released that year reoffended within five years.

 

I think that number went up significantly higher by more than 10 percentage points in the following four years, which is where the follow up period ended. In Baltimore, for example, in 2017 police identified 118 murder suspects. 70 percent of those murder suspects had at least one prior arrest for a drug offense on their record, which is I think what informed a lot of the kind of more draconian sentencing policies that we saw enacted in the mid-1980s in response to drug crime.

 

Caller 2:  Thank you.

 

Marc Levine:  This is Marc. Yeah. I was just going to add I think -- yeah. Obviously, it’s important from a justice perspective we have to punish people for the crime they did do. And I know all three of us agree with that. But it also is true that there’s -- you certainly do find various individuals who have a history of a variety of different types of crimes, not necessarily specialists so to speak. So there is a variable there.

 

There has been a study -- and basically the people that were released by clemency and those comparable individuals who served out there terms. And what was particularly interesting is some of the folks who went out were part of this Project New Opportunity program where essentially they had a mentor, someone that helped them with re-entry who connected with them while they were still on the inside and then when they were outside. And they received various services and things. And those people did especially better.

 

And I think that gets back to actually something Rafael and Arthur both said earlier is, you know, it is partly because our prisons are so different from ordinary society that if you don’t give people the preparation and skills and then have some continuity when they’re released, then you’re not going to see the kinds of [Inaudible 00:52:20] in terms of recidivism. I think all of us agree kind of the baseline is pretty high recidivism rates. And that’s true throughout the country as far as people coming out of prison.

 

There’s also some really good research from Hugh and others that show just keeping people in prison longer generally doesn’t reduce recidivism. Now, of course, if you’re there for six to nine months or a year [Inaudible 00:53:42] you don’t have any [Inaudible 00:53:47] it should be said you, of course, get an incapacitation effect. And for people that are highly dangerous, particularly likely to commit additional violent or sex offenses, that incapacitation role is the one thing prisons really do well. But I think there is a fair amount of consensus that we ought to focus more on kind of the interventions we provide, both in prison and during reentry to reduce recidivism for most types of offenders rather than how -- whether they’re in prisons for five years or seven years or eight years or ten years.

 

Arthur Rizer:  Yeah. I’ll just add one little caveat to that. I was -- I too was a federal prosecutor, and I remember some of the sentencing. I would work out my guidelines, and it would be just these astronomical sentences that in the back of my mind I always thought there’s just no way this is actually going to have a public safety positive. I would say just one think that I think everybody should be -- I think everyone on this call -- if you’re calling into this, you probably already know this.

 

The word “recidivism” is a really hard word to deal with. It is the most squirrely, slippery word there is because everybody defines it a bit differently. And what recidivism actually means changes depending on who you’re talking to, depending on what study you’re dealing with. So I would just leave that on the table that it’s very hard to define what it means to recidivate because it can mean different things to different people. Some people define it just arrest within five years. I find that kind of outrageous. If you’re innocent until proven guilty, how can that be something that shows you recidivated.

 

So at the same time, something that Rafael’s written about that I think is spot on is this idea that you’re somehow magically not a dangerous individual because you had pled down from what the original charge was. It’s very hard to actually account for that. We only have the final dispositions. It is almost impossible to track through the United States what the actual charge was. So it’s very hard to account for that. So my point is it’s a very hard thing to account for when you’re talking about anything related to the criminal justice system.

 

Greg Walsh:  Okay. We will now go to the next question.

 

Patrick Purtill:  Hey, this is Patrick Purtill calling. I’ve got -- with Faith and Freedom Coalition. Quick question, it seems to me that this has been -- the response to COVID, setting aside the First Step Act, but kind of the correctional response to the COVID pandemic has been, in one sense, an interesting opportunity it seems to me to just kind of see what -- it’s almost like a controlled experiment. What are different things that prisons and jails can do and not have a negative impact on public safety? And I was just curious if the panelists had kind of given any thought to what are the areas you think that we might actually learn steps and essentially just different ways of doing business than we’ve done that might carry forward kind of beyond the pandemic.

 

I think some of these things are probably just going to be focused on the immediate crisis at hand. But where are we most likely to learn something that we can carry forward in the responses that we’re seeing, whether it’s in the prison system or in the local jail procedures?

 

Rafael A. Mangual:  Yeah. This is Rafael. Yeah. I would say that while it’s tempting to view some of the responses to the COVID crisis within the criminal justice system as providing for a really good kind of controlled experiment, there are a lot of variables that are going to be really important to control for in post hoc assessments of what’s been done. As I mentioned earlier, right, the environmental criminological factors here are going to be really, really significant and really important to control for, right?

 

I don’t think it will be fair to say, for example, even if you do that kind of micro-geographic analysis, to say that, well, we released X amount of prisoners or jail inmates in response to COVID in this specific area. And X percent went to these kinds of neighborhoods, and we didn’t see concurrent rising crime. Therefore, this tells us something useful. I think you’re going to have to figure out a way to control for the impact of the COVID response outside correctional facilities will have on the likelihood of a crime being committed by someone who’s released in response to that pandemic crisis.

 

Again, when you have fewer vulnerable targets on the street, that’s going to meaningfully reduce the number of street crimes you’ll see. You’ve got more and more businesses that are non-essential that are bordered up. You may see a slight increase in burglaries, but you’re going to probably see a significant decrease in armed robberies. So again, it’s just going to be really, really difficult, I think, to come up with a significant -- a really reliable way to control for the significant differences that are going to vary, again, from area to area to be able to sort of really suss out what the impact of some of those responses are going to be in terms of releases.

 

Arthur Rizer:  Good to hear your voice, Patrick. I think that’s kind of what I was talking about in my statement. I think you boiled it down more eloquently than I did -- that this is -- in some ways there’s an opportunity here to test some of the theories that we’ve been talking about for a long time. And the other side of that coin that I think you were kind of hinting at is it’s also allowing us to do -- make arguments from the states that we would not be able to make in February that had no traction anywhere we went.

 

So I do see the opportunity that you’re talking about, but I also acknowledge what Rafael said, that we have to be very careful about what we tried to extrapolate from -- this is an abnormal time. We need abnormal ways to approach it. And it’ll be dangerous in some ways to try to read too much into tea leaves when we don’t know what kind of tea we’re making, if that makes any sense.

 

Marc Levin:  Yeah. And I would just say part of this has demonstrated how high the stakes are. If you keep somebody in jail who can’t afford bail who’s not a danger, they obviously might die. And we already knew they could potentially lose their job. And on the other hand, as Rafael has pointed out, if you release people, sometimes they could pay a lot of money, but they go on and murder someone because you didn’t have the appropriate public safety assessment and the ability to deny bail. That has an awful consequence.

 

And then one of the other areas that, you know, is interesting that we’re looking at is driver’s license suspensions because if somebody obviously can’t legally drive because they have an unpaid fine or something, then their options now -- a lot of mass transit isn’t running or they don’t feel that it would be sanitary to be piled into a subway with a lot of people. So I think that we really need to look at that area also. And it was, again, something that we were looking at beforehand. But again, it’s just kind of raised the stakes.

 

Greg Walsh:  Okay. It looks like we have one final question, so this will be our last one.

 

Caller 4:  I appreciate all of your time so far. But, I mean, it seems like this kind of topic of the issue of public safety has come up a lot. So I’m kind of just wondering more about the issue of safety as it pertains to the prisoners following their release. So I think it was Roger that laid this out quite clearly that the criteria is largely based around age and medical status.

 

So I’m wondering how we can plug this into their life outside of prison, so basically like their civilian life, into this assessment -- so just kind of looking at steps right now because, for example, in California it’s like some 30 percent of inmates are homeless, right? So following their release, they’re returning to the streets almost immediately. So under, I guess, the First Step Act, is it then lawful to say that the release of these individuals who fit this kind of criteria of, you know, being in the right kind of age and medical status -- but if they return to an environment in which their health may not be -- or may be at a greater risk, how can we more accurately assess that?

 

And, you know, what do we do at that point? And I guess kind of all of you guys, what kind of partnerships do you think will be needed in order to subsequently create this more well-rounded assessment to do this?

 

Arthur Rizer:  This is Arthur. You said Roger, but I’m the one that said that. But Rafael’s name is closest to Roger. So I’m not sure who exactly you were referring to. I’m going to assume it was myself. I would start off by kind of repeating what I said earlier that -- and something that all three of us have talked about and all three of us have written about is release to what? And I think that’s exactly kind of what you’re getting at is that, if there’s nowhere to go to, then you’re not actually -- the three things that I said are the most important things, the public safety, ensuring that there’s some type of thought to the dignity of the individuals, and also some of our basic notions of freedom and procedure of due process -- if you’re being released to nothing, that’s not serving any of those things.

 

You’re definitely not making it safer because even though I hate using the word “recidivism,” the recidivism is going to be a hell of a lot higher if we have nothing to release to. As far as, you know -- and I agree with you. I think that one of the biggest problems in our criminal justice system is that, you know, we have disinherited a generation of people from the dream. Listen. Let’s not be naïve. These people have committed a crime. They have done something wrong.

 

But if we’re looking at the totality of what kind of society we want to live in, we shouldn’t be surprised that people who are disinherited from the American dream don’t feel like they can participate. So that’s -- you asked a huge question. I don’t have a perfect answer. I do think one of the things at the top of our list should be that we really think about what we’re releasing people to. If people come home with no job because of licensing problems and—something that Rafael had a phenomenal video on—and they have no way to provide a living because they can’t get a license to do X, Y, and Z, we shouldn’t be surprised that we’re not making ourselves safer. So that’s kind of a snapshot of how I view the problem.

 

Greg Walsh:  Okay. It looks like we are all out of time. So on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected] Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.