This moment, where conservatives are actually competing with liberals to find ways to free at least some prisoners, is the culmination of a transformation on the right that’s gathered speed over the last decade.
This year is ending with one truly surprising development, a real man-bites-dog story: Donald Trump is poised to sign bipartisan legislation that will make America a slightly more decent place. I’m talking about the First Step Act, the criminal justice reform bill championed by Jared Kushner. The measure passed the Senate, 87-12, on Tuesday and the House on Thursday, and Trump is expected to sign it soon. According to Inimai Chettiar, of the Brennan Center for Justice at New York University’s law school, it will be the largest federal effort to reduce prison populations ever enacted.
In some ways that’s not saying much; experts expect the initial impact to be quite modest. Most incarcerated Americans are in state prisons, and the First Step Act affects only those in federal custody.
But even if that’s true in percentage terms, for many people, the new law will be a great blessing. Among other things, it retroactively applies a law that reduced the disparity between sentences for crack and powder cocaine, which could make around 2,600 prisoners eligible for immediate release. It also allows inmates to earn more time off for good behavior, gives judges more discretion on draconian mandatory minimum sentences, and requires that inmates be incarcerated closer to their families.
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Further, the fact that the bill is being supported by Trump — a man who fetishizes law and order and openly encourages police violence — changes the politics of criminal justice going forward. In 2016, the sentencing reforms in the First Step Act were seen as moderate, Chettiar told me. Now they are part of a bill with Trump’s conservative imprimatur.
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This moment, where conservatives are actually competing with liberals to find ways to free at least some prisoners, is the culmination of a transformation on the right that’s gathered speed over the last decade. Charles Colson had prepared the ground with Christian conservatives, mobilizing evangelicals on behalf of prisoners. That work then intersected with the Tea Party’s hostility to big government.
But it is also a product of something more personal and less ideological. One way to turn a right-leaning person into a prison reformer is to expose him or her to the realities of the system. I’m not quite cynical enough to believe that Trump wants to ease federal prison conditions because he and his children might be indicted — I assume he agreed to get behind the First Step Act because he was desperate for a win. But many of the people who’ve tried to move the Republican Party toward criminal justice reform have seen prison, or at least criminal prosecution, firsthand.
The most notable example is Kushner, whose father — at the time a prominent Democratic donor — spent 14 months in prison after pleading guilty to tax evasion, witness tampering and making illegal campaign donations.
Then there’s Colson, former special counsel to Richard Nixon, who founded Prison Fellowship, his Christian nonprofit, after serving seven months for obstruction of justice in connection with the Watergate scandal.
Kevin Ring, president of the criminal justice reform organization Families Against Mandatory Minimums, is a former Republican Hill staff member who once helped draft a law imposing mandatory minimums for methamphetamine dealers. “Back then, I thought prison and sentencing reform were problems that only plagued ‘others’ — the bad people, the wayward children from broken homes, the criminal class,” he wrote in USA Today. Then he went to prison himself for his role in Jack Abramoff’s illegal lobbying scheme and learned the brutal cost of incarceration to prisoners’ families.
Even Charles Koch, the Republican megadonor and major financial backer of criminal justice reform, was inspired by his own brush with the law. In 1995, his company was indicted on 97 environmental crime charges.
These histories suggest that, ironically, mass incarceration might end sooner if more white-collar criminals were locked up. A recent survey from the nonprofit FWD.us and Cornell University showed that almost half of American adults have had an immediate family member in jail or prison. But the penal system disproportionately affects poor people and people of color, those who have the least say in creating it. When people who are used to being treated with a modicum of decency and respect confront the reality of American prison life, they are stunned and demand change.
And now, at last, we are close to getting it, at least for some. Perhaps there’s a genuine silver lining to the deep corruption of the Republican Party. Modern conservatism can no longer ignore the interests of people accused of committing crimes.