2022 Update
In May 2020, the Council on Criminal Justice Task Force on Federal Priorities unveiled a roadmap for federal action on criminal justice policy changes, detailing 15 evidence-based priorities to advance the twin goals of safety and justice. Below is a snapshot of where each recommendation stands as of February 2022:
Current Status:
The U.S. Sentencing Commission, which has lacked a quorum of four voting members since 2019, is down to a single member: U.S. District Judge and Acting Chairman Charles Breyer. He has been urging the Biden administration to nominate new members, a call recently echoed by U.S. Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett, who cautioned that the commission’s inability to address a split among federal appeals courts over sentencing guidelines “can have direct and severe consequences for defendants’ sentences.” In addition to those concerns, the commission will be unable to address the full implementation of the 2018 First Step Act – and pursue broader, evidence-based changes called for in the Task Force report – until additional members are nominated and confirmed.
Current Status:
Bipartisan legislation advanced in June by the Senate Judiciary Committee would allow courts to impose sentences below a mandatory minimum for federal nonviolent controlled substance offenses in certain circumstances. In courtrooms nationwide, people have filed thousands of motions under the compassionate release provision of the First Step Act, seeking to modify their sentences, including those imposed under mandatory minimum laws. Of the 20,491 such motions decided between January 2020 and June 2021, 3,577, or 17.5%, were granted, according to a recent Sentencing Commission report. By far the largest category of people released, 53.5%, had committed drug trafficking crimes. More than 60% were black or Hispanic.
Current Status:
Although the Sentencing Commission has been unable to undertake the comprehensive review the Task Force recommended to identify unnecessary and duplicative criminal laws, two bills pending in Congress would initiate a comparable process. The Count the Crimes to Cut Act of 2021, introduced in October, directs the Attorney General and federal agencies to report to Congress a list of all criminal statutory and regulatory offenses and index them on their websites. It has been referred to the House Judiciary Committee, while a bill with similar provisions has been taken up by the Senate Judiciary Committee.
Current Status:
In Congress, legislation to prohibit acquitted conduct sentencing recently passed the Senate and House judiciary committees. In the legal arena, an ideologically diverse coalition urged the Supreme Court to end what it called the unconstitutional sentencing practice. The coalition’s brief came in the case of Erick Allen Osby. Osby had asked the Court to overturn his sentence on drugs and firearms charges, which was tripled by a judge who overrode a jury’s decision. The Court denied Osby’s cert petition in October of 2021.
Current Status:
No states have been granted a waiver to resolve the clash between state laws and the federal prohibition on cannabis, and there has been little serious discussion on the issue in Washington. In an action hailed by advocates of marijuana legalization, the House in 2020 approved a bill that would remove cannabis from the Controlled Substances Act – and end the need for waivers. The legislation has failed to pass the Senate but was reintroduced by House Democrats in May of 2021.
Current Status:
The White House in March proposed a $5-billion, 8-year investment in evidence-based community violence prevention programs, part of a strategy to target gun violence and other violent crime that is consistent with the Task Force recommendation. Although the administration’s initiative is stalled as part of the Build Back Better Act, its fiscal year 2022 budget contains a down payment on those dollars. The spending plan includes $100 million in new Department of Justice Community Violence Intervention initiative grant funds, part of what one analysis called a 78% increase in criminal justice reform-related grants. In January, the Council’s Violent Crime Working Group unveiled a new evidence-based action plan that builds on the Task Force recommendation with steps leaders can take to reduce community violence.
Current Status:
In July 2021, President Biden signed into law the VOCA Fix to Sustain the Crime Victims Fund Act of 2021, a measure directly aligned with Task Force recommendations. Its intent is to shore up the fund by increasing revenue and the formula percentage of state compensation payments to victims.
Current Status:
BOP Director Michael Carvajal, under pressure from some lawmakers following reports that some federal prison workers are committing serious crimes, recently announced his retirement. While Congress has not established an independent BOP oversight board, a bipartisan Senate Prison Policy Working Group launched to “examine conditions of incarceration, protect human rights, and promote transparency.”
Current Status:
Following years of work from many criminal justice organizations and in what some observers called “something of a watershed moment for the criminal justice overhaul movement,” Congress in 2020 expanded access to Pell Grants for incarcerated students. The Department of Education followed up in July, announcing that it would implement the legislative changes by allowing eligible students in college-in-prison programs to access Pell Grants beginning in July 2023. The move was an expansion of the Obama administration’s 2015 Second Chance Pell experiment, which had provided educational opportunities for thousands of justice-involved individuals who had previously been ineligible.
Current Status:
There has been no visible movement on this recommendation in Congress. Additionally, implementation of this policy would require the U.S. Sentencing Commission to develop guidelines and procedures for a sentence modification process, following congressional authorization. As noted in Recommendation 1, the Sentencing Commission lacks a quorum and is currently inactive.
Current Status:
A flurry of federal legislation is pending to seal criminal records for nonviolent offenses and help states do the same. The Clean Slate Act of 2021, introduced in the Senate and House in April, would automatically seal the federal records of people convicted of low-level, nonviolent drug offenses after they complete their sentences. Although neither bill has made it out of committee, the First Step Implementation Act approved by the Senate Judiciary Committee in June 2021 contains a related provision that would provide for “the sealing or expungement of records of nonviolent juvenile offenses.” Record-sealing efforts also extend to states, which could benefit from another pending bill that would establish a federal grant program to help them seal and expunge criminal records. Experts say a lack of resources is a major barrier for states seeking to enact Clean Slate initiatives.
Current Status:
Bipartisan legislation pending in the House and Senate judiciary committees would enact the main thrust of this recommendation. It would remove the longstanding prohibition on using federal funds for accountability court cases involving people convicted of violent crimes, instead allowing states to take into account their own “public safety needs” and “ individual circumstances” in determining admission. The legislation would also focus treatment court admission criteria on those “who are in high need of substance use disorder treatment based on evidence-based clinical assessments.”
Current Status:
In June 2021, U.S. Department of Housing and Urban Development Secretary Marcia Fudge outlined administration actions related to this recommendation. They include making returning citizens eligible for nearly 70,000 emergency housing vouchers funded by the American Rescue Plan, and developing guidance to avoid “unnecessarily overbroad denial” of housing applications on the basis of criminal records.
Current Status:
There has been no visible movement on this recommendation in Congress. However, the Centers for Medicare and Medicaid Services issued a state Medicaid director letter in 2017 revising 2015 guidance which allowed states to apply for waivers. The waivers give state Medicaid programs increased flexibility in expanding access to SUD treatment. Currently, the administration has approved 32 state waivers and five are pending.
Current Status:
The Medicaid Re-Entry Act of 2021 would bring about the first significant changes to Medicaid coverage for incarcerated people since 1965 by allowing states to restart benefits for Medicaid-eligible incarcerated individuals 30 days before their release. Although the legislation has strong bipartisan support, it remained in limbo in after the Build Back Better Act failed to advance in the Senate. In the interim, states are taking the initiative: seven have asked the administration to waive the longstanding prohibition on Medicaid benefits for incarcerated individuals who are nearing release. As the momentum builds toward change, the Council has partnered with Viaduct Consulting and Waxman Strategies to help states successfully navigate the new Medicaid landscape.