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Five missed opportunities for criminal justice reform Congress has the chance to get right this year

Jan 13, 2022 by Jeremiah Mosteller

It was just three years ago that Congress acted boldly to adopt the First Step Act. This monumental legislation passed both the House (358-36) and Senate (87-12) with overwhelming majorities.

This “first step” has already helped thousands of families and individuals and moved our federal prisons toward establishing a constructive culture that will help people successfully return to their communities after release. These reforms brought hope to many that wanted to see a federal justice system that more effectively protected public safety and upheld true justice.

The First Step Act carried with it a promise that this would be just the start of efforts in Congress to improve our system.

It is time that Congress takes the next step toward ensuring our federal criminal justice system reflects the American values of second chances, proportional punishment, and due process.

Lawmakers had many opportunities to do this in 2021, but leaders in both chambers consistently failed to allow their duly elected members to vote on important bills with bipartisan support within and outside Congress.

Below are the top five missed opportunities for federal criminal justice reform that we hope Congress will advance in 2022.

Building on past sentencing reforms with the EQUAL Act [S. 79 /H.R. 1693]

The EQUAL Act seeks to build on reforms in the First Step Act and Fair Sentencing Act by eliminating the 18:1 sentencing disparity that exists between crack and powder cocaine – two forms of the same drug that are nearly chemically identical.

As I have previously noted, this disparity “does nothing to advance our country’s public safety or public health goals by reducing crime, negative health outcomes, or substance use” but does disproportionately harm communities of color.

The bill has strong bipartisan support. It was overwhelmingly approved by both the House Judiciary Committee (36-5) and the full House (361-66) and has continued to gain Senate cosponsors from both parties. It also has the support of liberal, conservative, and law enforcement groups such as the National District Attorneys Association, American Civil Liberties Union, and Faith and Freedom Coalition.

Read this article on how this well-intentioned solution failed to learn more about this bill.

Ending an unjust sentencing practice by adopting the Prohibiting Punishment of Acquitted Conduct Act [S.601 / H.R. 1621]

The practice of acquitted conduct sentencing allows a judge to increase the punishment imposed on an individual for crimes which a jury has found them innocent of at trial. This practice “flips the presumption of innocence on its head.”

Allowing it only undermines the rule of law and trust in our justice system. The Prohibiting Punishment of Acquitted Conduct Act is a straightforward and reasonable reform that would not reduce the sentences for any type of crime and simply ends this unjust sentencing practice that infringes on individual liberty.

Republicans and Democrats alike have raised concerns about this practice. The bill has been approved by both the House and Senate Judiciary Committees with bipartisan majorities and is ready for successful floor action in both chambers.

Read this Q&A to learn more about AFP’s efforts to end acquitted conduct sentencing.

Equipping states to stop a counterproductive policy through the Driving for Opportunity Act [S. 998 / HR. 2453]

In recent years, states as diverse as Virginia, Utah, New York, Montana, and Texas have reformed their policies that suspend or revoke an individual’s driver’s license for a mere failure to pay court debt after discovering that such policies are counterproductive at incentivizing individuals to pay such debts.

The Driving for Opportunity Act would empower other states who want to adopt similar policies by authorizing the appropriation of funds to a new Department of Justice grant program. This bill fully respects state sovereignty by neither forcing nor coercing states to make any changes to their laws and would not provide permanent funding to states.

The Driving for Opportunity Act has received the support of a diverse coalition for two years that includes Americans for Tax Reform, the Fraternal Order of Police, and Prison Fellowship. It has successfully passed both the House and Senate Judiciary Committees and has 8 Republican and 14 Democrat cosponsors across both chambers.

Learn more about why Americans for Prosperity and other groups, including Civil Rights Corps, FreedomWorks, and Law Enforcement Action Partnership, are supporting the Driving for Opportunity Act.

Securing second chances with The Begin Again Act [S. 2502 / H.R.1924]

More than 79 million Americans have a criminal record. A growing body of research reveals the positive benefits of expungement for those facing an uphill battle to restore their family, reputation, and financial future after paying their debt to society.

Federal law provides one of the most limited expungement mechanisms in the country, and the Begin Again Act would eliminate the existing age limitation for those with a first-time simple drug possession conviction. This “clean slate” would help people secure a true second chance.

The Begin Again Act was approved by the Senate Judiciary Committee in December and its House companion is positioned to win committee approval in 2022. Both chambers should promptly advance this common-sense bill to the president’s desk.

Read our coalition’s letter of support to learn more about this bill and why it is a positive reform.

Providing a ‘second step’ through The COVID-19 Safer Detention Act & First Step Implementation Act [S. 312/H.R. 3669; S. 1014/H.R. 3510]

The straightforward but vital reforms in the First Step Implementation Act and COVID-19 Safer Detention Act reflect the fulfillment of a promise to the American people for a “Second Step.”

The First Step Implementation Act would allow certain sentencing reforms passed in the First Step Act to be applied retroactively, provide judges with additional discretion to apply the appropriate punishment in criminal cases, and allow for the sealing and expungement of nonviolent crimes individuals committed as a minor, among other things.

The COVID-19 Safer Detention Act would require an individualized determination of suitability for compassionate release or transfer to home detention for the fast-growing number of individuals in federal prison over the age of 60.

Both bills have been approved by the Senate Judiciary Committee and have a strong number of bipartisan cosponsors in the House. They also have strong support among advocates with groups as diverse as the Due Process Institute, R Street Institute, and the National Association of Criminal Defense Lawyers endorsing the legislation.

To learn more about the potential impact of the Safer Detention Act, see an Impact Analysis created by our partners at Recidiviz.

These common-sense reforms are all waiting for congressional action. They would fulfill the First Step Act’s promise of a “next step.” We hope that leaders in both chambers will allow every member the opportunity to have their voice heard on these important bills early in 2022.