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Blog: Paul Ryan’s Criminal Justice Proposals Are Good, Small, Bipartisan Steps to Advance Restorative Justice

Aug 01, 2014 | By Carolyn Burstein

Tucked back in chapter 4 of his Expanding Opportunity in America are Congressman Ryan’s proposals for reforming the criminal justice system, an area that has received little commentary in the press compared to his “Opportunity Grants.” This is a shame because he seems willing to buck several within his party who still cling to the policies of “Let’s get tough on crime,” and the zero tolerance modus operandi used since the late 1980s. Not only does Ryan contradict his earlier votes on some of these issues–ThinkProgress reminds us that in 2007 he voted against a bill that would have eased convicted offenders’ re-entry from prison into society, and in 2000 voted against providing alternatives to sentencing—but he also places his criminal justice reforms in the context of poverty.

Yes! Ryan acknowledges a clear link between incarceration and a lack of economic mobility, even stressing that a criminal record is a formidable hurdle to employment. He also quotes a Pew Research study showing the disproportionate impact of incarceration on African-American males. Like a “true progressive,” Ryan is even willing to suggest that incarceration tangibly affects a child’s future when her/his parent is imprisoned, including a reduction in the family income and setbacks in school readiness as well as being more likely to act out in school. Amazing!

Ryan endorses bipartisan reform already introduced in both the House and Senate over the past year–the “Smarter Sentencing Act” sponsored by Senators Mike Lee (R-UT) and Dick Durbin (D-IL) and in the House by Congressmen Raul Labrador (R-ID) and Bobby Scott (D-VA) and also the “Public Safety Enhancement Act” in the House and the “Recidivism Reduction and Public Safety Act" in the Senate. These are primarily bills that would give judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders, and establish policies to ease re-entry from prison by expanding rehabilitative programs in prison, which would, most likely, ultimately reduce recidivism rates. Such programs include educational courses, faith-based services, prison jobs and drug-abuse treatment.

Ryan’s criminal justice reform proposals are tripartite. He suggests: 1) a reduction in rigid and excessive mandatory sentences for drug offenders; 2) the development of a risk-and-needs-assessment tool for expanding enrollment in rehabilitative programs; and 3) partnering with and supporting innovative reforms to the criminal justice system by state and local governments and non-profit organizations. While most of what he is proposing is included in the legislation referred to above, the third part of his proposal is unique.

Ryan rightly acknowledges that more than half of federal prisoners are drug offenders, many of whom are both non-violent and low-risk, and today’s excessive mandatory minimums play havoc with their lives, overcrowd prisons and do nothing to reduce their recidivism rates. As Ryan told the Daily Beast, “I think we had a trend in America for a long time on mandatory minimums where we took away discretion from judges. I think there’s an appreciation that this approach has some collateral damage…we need to give judges more discretion in these areas.” Unfortunately for Ryan, the Attorney General (AG), Eric Holder, has already begun to loosen the burdens facing many federal prisoners, thus stealing his thunder in the sentencing arena. For the past year, Holder has recommended to prosecutors, judges, state AGs and in testimony before the U.S. Sentencing Commission that strict, mandatory minimum sentences should be reserved for high-level or violent drug traffickers. Much of the reasoning behind his recommendations is also similar to Ryan’s–social problems associated with incarceration, ethics, economics—which certainly makes Ryan’s thinking derivative. Nevertheless, one is not necessarily looking for pure originality in Ryan’s proposals, but in real fairness.

In April 2014, the U.S. Sentencing Commission voted to change the formula used to determine sentences for federal drug offenders, thereby shortening prison stays for about 70% of federal drug trafficking offenders. And in mid-July 2014 the commission voted unanimously to apply full retroactivity for 46,000 people in federal prison for drug-related offenses–one fourth of federal prisoners. Both actions were strongly supported by several organizations and individuals, among them Families against Mandatory Minimums (FAMM), which said in its testimony before the Commission, ”Our modern criminal justice system has, since the mid-1980s, been addicted to using lengthy prison sentences to solve the vexing social, public safety and public health problems caused by drugs. These unduly long sentences have created more problems than they could ever hope to solve. We are delighted that the Commission is taking this modest and well-supported step to begin a long-overdue reversal of course.” Ryan mentions nothing about the progress made by the sentencing commission, an egregious omission.

Despite these actions and the support of senators that are liberal stalwarts and Tea Party favorites, S. 1410, the “Smarter Sentencing Act”—the drug sentencing overhaul at the heart of Paul Ryan’s sentencing reform proposals—has still not passed. Several senators remain wary that these reforms inject too much leniency in the criminal justice system and would create public safety concerns. Even cost analyses by the Bureau of Prisons do not convince these senators, since the analyses do not include the costs to victims.

But opposition to sentencing reform is not restricted to conservative Republicans. In mid-July 2014 a bill on identity theft, reported out of the House Judiciary Committee, was strongly supported by DNC Chair Debbie Wasserman-Schultz, even though it included two mandatory minimum penalties. Despite the efforts by Representatives Conyers (D-MI) and Scott (D-VA) to remove the mandatory minimums from the bill, their attempts were unsuccessful. It seems that mandatory minimums are alive and well.

Ryan’s proposed criminal justice system reforms in the area of recidivism reduction borrows heavily from H.R. 2656, the “Public Safety Enhancement Act” introduced a year ago and, like the “Smarter Sentencing Act,” not yet passed. Its three main components are:

  1. A risk and need assessment tool would be developed that would classify prisoner’s recidivism risk as low, moderate or high, and assign each to a rehabilitative program based on the risk level (Ryan decries the current low enrollment in rehabilitative programs, now between 10 and 15%).
  2. Existing rehabilitative programs would be expanded to ensure they are accessible to all prisoners over the length of their incarceration.
  3. Time credits that would help prisoners qualify for prerelease custody would be offered as incentives for participating in the programs. For example, a low-risk offender would earn 30 days of time credits for every month of successful program participation; a moderate-risk offender would earn 25 days; and a high-risk prisoner would earn 8 days. Family phone and visitation privileges would also be incentives for successful program participation.

Finally, Ryan’s third criminal justice reform proposal requires the federal government to partner with and learn from reforms at the state and local level. He asks that innovative or promising interventions be studied, evaluated and used—scaled down, if necessary. He mentions a few promising examples from the states of Texas, Georgia, Hawaii, the city of Milwaukee and a faith-based organization in Indianapolis. This component of Ryan’s criminal justice proposals is similar to advocating for the evaluation and borrowing common in any “best practice” program and therefore non-controversial.

Paul Ryan’s shift from focusing on harsh punishment to rehabilitative programs is a welcome change. Isn’t it about time that we have an overwhelming call to address U.S. mass incarceration? Let us not forget that the U.S. currently has over 2 million people imprisoned, more than any other nation, and that the federal system alone has had an increase of 830% in the number of prisoners since 1980.

We at NETWORK join with the “Justice Fellowship” which praised Ryan’s criminal justice proposal as one way (a small step) to advance the key principles of restorative justice. We believe that these proposals should garner bipartisan support.