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May 30, 2019

The First Step Act and Trump – has the leopard changed its spots?

It may have passed you by, but on December 21st last year a new criminal justice act was signed off by President Trump. It was the first major progressive criminal justice bill passed by the federal government for more than a decade. The First Step Act reduces mandatory minimum sentences for some drug offences, it says that federal prisoners must not be imprisoned more than 500 driving miles from their families (this is an improvement!), improves the compassionate release process and grants significant resources for prison programmes.

It was signed off by a President who has appointed hard-liners as Attorney General and, in 1989, in the wake of the notorious murder of a jogger in Central Park, took out full page newspaper advertisements proclaiming: “Mayor Koch has stated that hate and rancor should be removed from our hearts. I do not think so. I want to hate these muggers and murderers. They should be forced to suffer … Yes, Mayor Koch, I want to hate these murderers and I always will. … How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!”

So has the leopard changed its spots? Its too early to say, but it is clear that Trump is persuadable on criminal justice if approached by the right people in the right way. And that the movement for criminal justice reform in the States is both powerful and adroit. The two key ingredients in this particular success appear to have been the advocacy of powerful individuals, notably Jared Kushner, Trump’s son-in-law, and the the influence of both right and left wing advocacy groups.

Criminal justice reform has traditionally in the USA been a progressive, left-wing cause (despite many Democratic politicians promoting punitive legislation). But, since 2010, the right has embraced criminal justice reform in their own way. The Right on Crime movement was started by a conservative think tank and a faith based charity to focus on “reducing crime, lowering costs and restoring victims”. They have used christian values such as redemption and forgiveness in their case for change. They, and other conservative organisations, such as the Charles Koch Institute, have worked hard to persuade Republican politicians at state and federal level to take steps to reduce the prison population, and have had some great successes in states such as South Carolina and Maryland. In advocating for the First Step Act, both right and left leaning organisations (like ACLU and the Sentencing Project) worked to the same agenda, and succeeded in getting Republicans and Democrats on board. All the main advocacy organisations would have liked the restrictions on mandatory minimum sentences to go further, but they met resistance to any move which might benefit those with convictions for violence.

Everyone I spoke to in Washington DC agreed that the key to getting Trump on board was Jared Kushner. In 2005 Jared’s father was imprisoned for 14 months in a federal prison. A property developer, Charles Kushner was convicted of illegal campaign contributions, tax evasion and witness tampering. Jared visited his father in prison and met other prisoners. He became a convert to system reform and when the opportunity presented – his father-in-law becoming President – he made it his mission to make some real progress. He not only lobbied Trump, but also worked hard to influence politicians in both houses. The fifteen lessons he learned from criminal justice reform included reaching out to the other side

“You will never make a deal in politics by only talking to people who agree with you. Ivanka and I would frequently host bipartisan groups of six to eight legislators at our home for off-the-record dinners, normally on a specific legislative priority, and the first toast was always by someone saying, “We don’t do this enough. We used to spend more time with people in the other party in safe and productive environments.””

Its questionable whether the First Step Act would have got passed without Jared Kushner’s influence on the President but, having got one piece of bi-partisan legislation through, the campaigners have smelt success. On April 1st Trump announced there would be a Second Step Act to ease employment barriers for those released from prison, but there has been no action since. Federal sentencing reform is still a pipe dream. Particularly since the current Attorney General, William Barr, wrote a report in 1992 on “The Case for More Incarceration” and is a supporter of the death penalty.

The First Step Act is just that – a first step. It will make only a small difference to the size of the federal prison population. But that population is already falling and the criminal justice tide definitely seems to have turned in the US. While right and left wing advocacy organisations continue to plug away, there is hope of a Second Step Act, sooner or later.