Don’t Let the First Step Act Be the Last Step in Criminal Justice Reform

Today’s enactment of the First Step Act constitutes the most significant reform of the federal criminal justice system in a generation. The new law includes many laudable features, such as reducing mandatory minimum sentences for non-violent drug offenses, making retroactive the provisions of the Fair Sentencing Act of 2010 that reduced the crack-to-cocaine sentencing disparity, expanding the “safety valve” that allows certain non-violent drug offenders to avoid the harshness and rigidity of mandatory minimum prison sentences, and requiring the placement of prisoners near the families to whom they’ll one day return.

Policymakers, stakeholders, and activists have been pushing for many of these reforms for half a decade, and for those closest to the effort, the experience has been a roller coaster of advances and setbacks. Just weeks ago, despite growing support throughout much of the year, it seemed as though the door would close yet again on this bipartisan and cross-ideological effort. Then, in the immediate aftermath of a supportive tweet from President Trump, newfound support from Senator Ted Cruz, and needling from fellow Kentucky Senator Rand Paul, Senate Majority Leader Mitch McConnell reversed course and committed to bringing the First Step Act to the Senate floor for a vote. The bill passed the Senate on December 18, 2018, by a vote of 87-12, and then quickly moved to the House—which had passed a similar but less robust bill earlier this year—where it passed 358-36. The bill became law with the president’s signature earlier today.

In typical Washington fashion, the drama surrounding this effort has caused a flurry of media attention, perhaps leading some to the conclusion that this package of reforms will fix most, if not all, of what is wrong with our criminal justice system. But as even the staunchest advocates of the new law acknowledge, there is much more that needs to be done. As implied by the title of the bill—the First Step Act—there are additional reforms that must be instituted before Americans will have the criminal justice system they deserve and that justice demands.

Scholars with Cato’s Project on Criminal Justice have identified coercive plea bargaining as among the most perverse practices in America’s criminal justice system, both because it produces an alarming number of false convictions and because it has resulted in the near-elimination of the criminal jury trial. Today, more than 95 percent of convictions are obtained through plea bargains, rendering the constitutionally prescribed method for adjudicating criminal cases—the jury trial—practically extinct.

In its idealized form, plea bargaining is the process by which prosecutors and the criminal defendant negotiate a mutually acceptable resolution whereby the defendant avoids trial by pleading guilty to the alleged crime or crimes before a judge. The defendant typically gets the benefit of a modest reduction in prison time and/or financial penalties, while the prosecution gets to avoid the expense of a trial and the inevitable unpredictability of juries.

But the plea-bargaining process can easily become coercive when, for example, prosecutors stack charges in order to expose the defendant to greater prison time if they insist on going to trial, a well-documented phenomenon known as the trial penalty. Other coercive levers available to prosecutors include pretrial detention, the use of civil forfeiture that can deprive the accused of the resources needed to defend themselves, and threats to investigate friends and family members. The result is a system in which the government can convict and incarcerate people without the explicit approval of ordinary citizens, and without having to prove its case against the accused in a public and adversarial proceeding.

As part of its effort to raise public awareness of coercive plea bargaining and challenge its legitimacy, the Cato Institute’s Project on Criminal Justice hosted two events earlier this year—one in July titled Plea Bargaining: Good Policy or Good Riddance? and a second in October titled Coercive Plea Bargaining.

Cato has also begun a strategic amicus initiative designed to restore the Founding-era practice of ensuring that jurors have the information they need to perform not only their fact-finding function, but also their time-honored role of limiting government power by refusing to convict factually guilty defendants when it would be unjust to do so—a practice often referred to as “jury nullification,” but perhaps more accurately described as “conscientious acquittal.” To properly discharge the latter role of limiting government power, jurors should be advised of the likely consequences for the defendant if they are convicted, the substance of any plea offer(s) made to the defendant by the prosecution, and basic information about the history and importance of conscientious acquittal in the Anglo-American legal system.

And to set the stage for possible legislative responses to coercive plea bargaining, Cato will endeavor to educate policymakers in the coming months on the myriad problems associated with this unjust, unseemly, and extra-constitutional feature of our criminal justice system. If there is an appetite for a “Second Step Act” in 2019 or beyond, Congress would do well to include provisions that squarely confront the epidemic of coercive plea bargaining.