President Donald Trump’s First Step Act for Prison Reform
Whatever one thinks of President Donald Trump, he brought about a sweeping bipartisan reform for the most alienated citizens of the free world: America’s prisoners.
History sometimes repeats itself in subtle ways. In 587 BC, the Kingdom of Judah fell to Babylonian invaders who destroyed Jerusalem and the Temple and carried off the people of Judah to exile in Babylon. It is one of the mysteries of Sacred Scripture that, two centuries earlier, the Prophet Isaiah wrote about this, and actually named the person — Cyrus — who would show up two centuries later to fix it:
“Thus says the Lord to his anointed: To Cyrus, whose right hand I have grasped to subdue nations before him and ungird the loins of kings, to open doors before him that gates may not be closed.”
Two hundred years after that prophecy was set down by Isaiah, a man named Cyrus united the Medes and the Persians to form the great Persian Empire. In 539 BC, fifty years after Babylonians captured Jerusalem, deported the Jews into exile, and destroyed the Temple, Cyrus, and his armies conquered Babylon.
For the Jews in exile, however, Cyrus turned out to be more of a liberator than a conqueror. Though he practiced no faith the Jews could recognize and lived with values deplorable to them, Cyrus carried out exactly what Isaiah had prophesied. He restored the Kingdom of Israel, rebuilt Jerusalem and the Temple, and returned the Jews to their promised land. King Cyrus then published a charter of freedom declaring an end to slavery and oppression and the restoration of religious freedom.
The Prophet Isaiah certainly never envisioned anyone like Donald Trump, but there is a curious sort of parallel in his presidency. He is notorious for having lived with a lifestyle and value system that would be anathema to Evangelical Christians, and yet they have come to see him as a Cyrus-like protector of religious liberty.
Devout Catholics might find some of his value system embarrassing, but he has also embraced the right to life and is transforming the federal courts with pro-life judicial nominees who respect religious liberty, the most fundamental freedom in the First Amendment of the U.S. Constitution. American Jews traditionally identify as Democrats, but many might be thinking of King Cyrus right about now in the wake of a stream of anti-semitism from two new Democratic members of Congress who resist correction. Also like King Cyrus, President Trump restored the American Embassy to Jerusalem, Israel’s traditional capitol for three thousand years.
For my part, I don’t know quite what to make of this president. As I write this, a family member sent me an email declaring, “Right now I am committed to despising Donald Trump and waiting for the day he is charged with treason.” My family is still reeling from a photo of me portraying him in “Assassins’ Deed: My Stage Debut as President Donald Trump.” They were horrified
The President’s First Step Act
Most people have heard of the First Step Act initiated by the Trump White House and signed into law after receiving wide bipartisan support. it is the most significant prison reform initiative in decades, but most people do not know that its title is actually an acronym. First Step = the “Formerly Incarcerated Reenter Society Transformed, Safely Transitioning Every Person.”
This is a bold and very broad initiative that encompasses far more than I could fit into a single TSW post, but as a prisoner, reading the act brought about my own “Cyrus-like” moment. This president, who has been droning on about walls for three years, has set into motion a policy statement for federal prisons that exposes prison walls to some much-needed daylight. Some TSW readers have asked me if this could have an effect on my own imprisonment and over time this is a hopeful notion. For the present, however, the initiative only affects the Federal Bureau of Prisons just as the President’s pardons and commutations power is limited only to federal prisoners.
But this First Step Act is just that, a first step. States often, though sometimes slowly and sometimes begrudgingly, follow what has been adopted by the federal government, however. We can only hope that this president’s bold course of action has a trickle-down effect.
For the moment, the First Step Act is being talked about and implemented in several states, but not yet in the Live Free or Die State where I am in my 25th year of imprisonment. I do not doubt, however, that time will erode that resistance so let’s have a look at what the First Step Act has taken on.
This President has ordered the removal of what prisoners everywhere call “the box” on federal employment applications. Let’s hope this catches on. Mr. Trump has asked that employers in the private sector follow his lead on this. “The Box” is a check-off box on federal job applications that must be checked if a job applicant has ever been convicted of a felony. Even in the best job markets, like the present one, checking “the Box” means a dead end for all but the most menial employment for ex-prisoners.
No matter how long ago an offense had been committed, no matter how much education and rehabilitation the former prisoner has been invested in, no matter that his or her debt to society has been paid in full, checking “the Box” has too often meant chronic unemployment for former prisoners — and even worse, exploitation. Not checking it subjects ex-prisoners to charges of falsifying applications. Its removal is a giant step toward helping former prisoners remain free.
President Trump’s rhetoric on this has also been bold, and against the tide for both Republicans and Democrats. In demanding removal of “the Box” he has stated forcefully that any former prisoner who applies for a job is able to do so because he or she has paid in full a debt to society and their imprisonment has ended.
The First Step Act also funds and implements evidence-based rehabilitation programs to enable prisoners to regain their freedom and to remain free once a sentence is completed. The prejudice in our culture against former prisoners is akin to that against the rights of slaves that I wrote about in “Senator Susan Collins Stokes the Embers of Civil War.” It took a federal edict — Abraham Lincoln’s Emancipation Proclamation — to begin a cascade of events and attitudinal adjustments toward meaningful reforms. “Lock ‘em up and throw away the key” does not reflect a free and enlightened society.
Abandon All Hope, Ye Who Enter Here!
In the current prison system in some states, rehabilitation and restorative justice are dead-ended by laws like New Hampshire’s “Truth in Sentencing.” When that law passed in the early 1980s, it required that a New Hampshire prisoner must serve every single day of his or her imposed prison sentence and nothing a prisoner could do would mitigate that.
The politicians who pushed such a law onto its citizens later justified it by saying that they expected judges to temper their sentences in accord with the new law, but that never happened. Prison became like the “Hotel California.” No one ever leaves, and those who do are so institutionalized by long sentences, and so unprepared for a return to society that they are set up for failure. All incentives for rehabilitation were destroyed, and prisons became mere warehouses of nothing more redemptive than endless punishment.
As a direct result of such laws — and the draconian prison sentences resulting from the Clinton Crime Bill of the 1990s — America’s prison population grew far beyond the capacity of its prisons. The United States has 5% of the world’s population and 25% of the world’s prisoners. This nation imprisons more of its citizens than all 28 countries of the European Union combined.
In the 25 years from 1980 to 2005 in New Hampshire, for example, the State population grew just 34% while its prison population grew almost 600% with no commensurate increase in crime rate. This is entirely because of Truth in Sentencing, and the fact that it overcrowded its prisons with long sentences and no avenue or incentive to mitigate them. Currently, only two states — New Hampshire and Iowa — cling to their Truth in Sentencing laws. They also happen to be the two states at the earliest epicenter of every presidential election.
To try to fix this, New Hampshire passed measures like NH-RSA 651:20 that, on paper at least, provides a forum for prisoners to demonstrate their rehabilitation to the court and earn up to a one-third reduction in sentence. Such reductions, however, are rarely if ever granted by the courts. Judges want legislators to fix this while legislators blame judges for not using discretion — or worse, for abusing discretion — that the law affords them.
In the late 1990s, then NH State Representative Maxwell Sargent wrote in a legislative newsletter of his dismay at the attitude of one judge, Judge Arthur Brennan (who also happened to be the judge who presided over my trial and sentencing). Representative Sargent had been encouraging one young prisoner to work doggedly toward his own rehabilitation and release. Over a decade in prison, the man earned both Bachelor and Masters degrees at his own expense and jumped through every possible hoop to redeem himself. In the end, Judge Brennan dismissed his petition with a blithe, “I’m not at all impressed,” and denied his request for a sentence reduction. The message sent was, “Why bother trying?”
The Injustice of Extreme Prison Sentences
Among the many signs of hope that have followed on the heels of President Trump’s First Step Act has been an increasing clamor of voices to revisit the length of the prison sentences imposed on first-time offenders. One such voice is Colorado Judge Morris Hoffman whose commentary in The Wall Street Journal (Feb. 9, 2019) was entitled, “The Injustice of Extreme Prison Sentences.”
Judge Hoffman wrote of how mandatory minimum sentences required him to impose a 146-year prison term on a teenaged armed robber in 1995. The only person injured in the incident was the teenage robber himself who was shot in the foot. Still, his earliest possible parole date is 2065 at the age of 90. Judge Hoffman reflected on this a bit:
“Since I imposed that sentence 23 years ago, that DA has retired, my children have grown up and had their own children, and my black hair is turning gray. The world saw the mapping of the human genome and the rise of the internet. My teenage robber saw the inside of a prison, and has 48 more years to go.”
Judge Hoffman wrote that many people have celebrated the First Step Act, but warned that it does little to address the American epidemic of overly long prison sentences. Some of his statistics are an eye-opener. According to the Justice Policy Institute, the average length for a first-time offender in Canada is four months; in Finland it is 10 months, in Germany it is 12 months; and in “rugged, individualistic Australia” it is 36 months. The United States leads the Western world with an average length of prison sentence for a first-time offender at 63 months.
I should point out here that when I appeared before Judge Arthur Brennan for sentencing on September 23, 1994, I too was a “first-time offender” though I to this day insist that the offense for which I was sentenced never actually occurred at all. I was sentenced to 804 months, nearly 13 times the national average. I was privileged, however, to publish a comment on Judge Hoffman’s article at WSJ.com with the help of a friend. Here it is:
“It is a good and just thing that Judge Hoffman reflects so candidly on the rampant imposition of extreme prison sentences. Other factors, besides those he mentioned, are the injustices of the plea bargain system, the fact that former prosecutors are over-represented on the judges’ bench, and a profession-wide bias against allowing convicted persons to have a voice. I am perhaps an exception to the latter. I was sentenced in 1994 in the Live Free or Die State to serve 67 years in prison after three times refusing a plea deal, proffered in writing, to serve one year. I am now 65-years old in my 25th year in prison for a crime alleged to have occurred when I was 29, but that never actually occurred at all. Why else would someone decline a single year in prison and risk sixty-seven?”
Judge Morris Hoffman makes a critical distinction about the sentencing of offenders in his court. “We have a duty to punish wrongdoers,” he wrote, “but that duty comes with the obligation not to punish them more than they deserve. Much of our criminal justice system has lost that moral grounding and our use of prisons has become extreme.”
I must add a qualifying principle to that. It is not just the offense that is being punished, but also the offender, and that requires evaluation for factors that may mitigate a sentence. Refusing a one-year plea deal offer may be seen as a defendant having no remorse. It may also be the result of actual innocence, something that too many judges simply never consider.
A far more egregious example is that of Pornchai Moontri who has served 27 years in prison for a crime that he did commit. But today every objective observer of that story agrees that his offense at age 18 was the direct result of extreme conditions that were never evaluated. That memorable story was told in “Pornchai Moontri, Bangkok to Bangor, Survivor of the Night.”
Pornchai has vastly demonstrated that he is no longer the abused and homeless teenager who committed a desperate act on March 21, 1992. He is to be deported upon completion of his sentence in two more years. His only hope for some relief from that sentence – as is mine – was a political solution. Maine’s Republican Governor Paul LePage is leaving office and had the ability to commute those last two years. In various articles, he has spoken of his concern for the homeless and abused, and for victims of domestic violence. He had no political risk whatsoever in evaluating this story, but he reportedly refused to even look.
The First Step Act is a step in the right direction, but only a step. Justice requires taking it out of the hands of politicians and placing it where it belongs — before judges who are permitted the discretion to do what they are supposed to do: judge.
Editor’s Note: Please share this important post, but don’t stop here. Learn more about prisons and the potential for restorative justice with these related posts from These Stone Walls:
The Shawshank Redemption and Its Real-World Revision
Prisons for Profit and Other Perversions of Justice
At Play in the Field of the Lord
Cry Freedom: A Prisoner Unlocks Doors from the Inside
