Should reform advocates urge Prez Trump to embrace new proposed federal Clean State Act as sound Second Step?
The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:
- Via the Washington Examiner, "Trump declared he was working on a Second Step Act. The proposal doesn't exist"
- Via Politico, "Bipartisan duo makes new criminal justice reform push"
Let's begin my pitch with excerpts from the first of these pieces:
President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away." Despite the day, Trump was not joking. But he was also not correct.
Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement. “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.
The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark. “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.
It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away." A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....
“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”
Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term. The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming). It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act. Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)
Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms grow dicier. The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC. The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.
And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support. Here are a few details about a federal Clean State Act proposal via the Politico article linked above:
An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year. Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.
The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes. “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform. The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....
Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.
Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front. Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.
As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space. But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon.
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