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 to 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. “Its direct overall impact is going to be pretty slight — I think even its proponents admit that,” said John Pfaff, a law professor at Fordham and the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
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.
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. “That means that progressives and reform-minded moderates are going to need to bring forward much bolder proposals,” she said.
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, a story David Dagan and Steven Teles tell in their book “Prison Break: Why Conservatives Turned Against Mass Incarceration.”
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.