On July 24, 2017, Rep. Doug Collins (R-GA) introduced a bill in the House of Representatives titled the “Prison Reform and Redemption Act” (PRRA).1 The bill is co-sponsored by nine members of the 115th Congress, four of whom are fellow Republicans. According to the text of the proposed legislation, its purpose is “To provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes.”2
An unstated purpose of the PRRA is to lower the population in federal prisons. Given the fact that in 2014, the United States as a whole had 2.2 million people incarcerated, more than any other country in the world, and almost as many as Russia and China combined,3 this is a laudable goal. Our prisons are overflowing and violence is often a result of the “disorder and tension” endemic to institutions crowded with caged men and women.4
Of course, overcrowding and violence are not the only problems associated with mass incarceration. Perhaps higher on that list, and certainly more likely to keep the legislator awake at night, is the economic reality of the carceral state. From the federal perspective, the numbers are astounding: in 2013, the budget for the Bureau of Prisons alone was in excess of $7 billion.5 Given the growing number of elderly prisoners,6and the higher costs associated with their incarceration,7the BOP’s budgetary needs are expected to rapidly climb over the next decade.
Former Attorney General Eric Holder told members of the American Bar Association in 2009 that the country’s high incarceration rate is “unsustainable economically.”8 And as succinctly stated by leading scholar Marie Gottschalk, “The only way to make major reductions in corrections budgets is to close penal facilities and reduce correctional staff.”9 While the PRRA does not have the stated goal of reducing the federal prison population, its implementation would do exactly that.
Mass incarceration is more than just a fiscal fiasco, however. The U.S. incarceration rate, which has risen as high as 730 per 100,000, rivals the rate at which Joseph Stalin was sending citizens to the gulags in the early 1950s.10 And while the conditions endured by the modern American prisoner may not equate with the Soviet gulags, they are unacceptably degrading and demeaning.11 What the incarceration and treatment of prisoners says about the state of a population has long been established. Over a century ago, Winston Churchill said, “The need and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.”12
The inability of state and federal authorities to ensure fair sentencing and the proper treatment of all prisoners is a moral failure with practical consequences. Experts have argued that prisons actually cause crime, and some social learning theorists have gone so far as to refer to prisons as “schools of crime.”13 Indeed, for certain individuals, imprisonment actually increases the risk of recidivism.14
Americans generally support second chances – except in the case of criminals.15 But whether the impetus is economic, moral or otherwise, there is a growing consensus that it is time for a change in the criminal justice system. Former President Barrack Obama’s historic clemency efforts received significant popular support. And a 2016 Pew Research Center survey found that 44 percent of respondents believed that “reforming the criminal justice system should be a top priority.”16
The states have already begun taking legislative action to address their own malfunctioning criminal justice systems. Notable reform efforts are underway in states with large prison populations, such as New York and Texas. Moreover, Congress is in a position to encourage state-level reform while also addressing mass incarceration at the federal level. The PRRA is a good example of a bipartisan, reform-minded bill that could actually become law. Unfortunately, a close reading of the PRRA as it stands now reveals major shortcomings. Ironically, the mistakes in this bill are quite likely the result of the political calculations undertaken to increase the chances that the PRRA becomes law.
A Look Under the Hood of the PRRA
The PRRA is not the first criminal justice reform bill introduced in Congress this session. It will likely not be the last, as there are countless bills introduced each year. Most bills, however, never reach the floor or even emerge from committee. The PRRA could be one of the few to successfully navigate the legislative crucible.
Bipartisan support is the key to the success or failure of any given bill. In the case of the PRRA, the ten sponsors of the bill are split evenly between Republican and Democrat. Additionally, one of these lawmakers is Rep. Bob Goodlatte (R-VA), the chair of the House Judiciary Committee. This is the very committee from which the bill must emerge before seeing the light of day in the House or the Senate. It is a long journey to the President’s desk, but bipartisan support may give the PRRA what it takes to get there.
So it is important to understand what the PRRA is, and perhaps even more important to understand what it is not. According to the official title, as introduced, the bill is intended “To provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes.” Right from the start, it is clear that the PRRA is directed specifically at the reduction of recidivism. It is not related in any particular way to the concept of rehabilitation, but is instead married to the concept of quantifiable, measurable and demonstrable reduction of recidivism.
The bill would direct the Bureau of Prisons to create a system which would accurately assess each and every federal prisoner’s risk of recidivism. Based on the calculated risk, prisoners would be assigned to different “recidivism reduction programs.” Such programs would run the gamut of typical prison programming, and would likely include life skills classes, family skills classes, academic classes, and vocational training, among many other programs. Prisoners would be periodically reevaluated for an updated calculation of their risk of recidivism.
Participation in the recidivism reduction programs would entitle prisoners to certain benefits. The most significant benefit would be the opportunity to earn “time credits.” For each 30 days of programming completed by a prisoner, he or she would receive 10 days of credit. Additional credits would be available for inmates who have demonstrably lowered their risk of recidivism or who have low or no risk of recidivism. In total, an inmate could earn up to 20 time credits for each 30 days of completed programming.
It is important to note that these credits are not good time. In other words, participating in recidivism reduction programs will not shorten a prisoner’s sentence. Instead, the credits will allow a prisoner to access a custody level referred to as “prerelease custody.” This consists of home confinement, halfway house, or a new category of BOP custody called “community supervision.” Notably, all of these options exist outside of the prison. Thus, while a prisoner who has programmed extensively may not obtain a shorter sentence, he or she will have earned early access to a significantly less restrictive placement.
Properly implemented, the PRRA should save the federal government a significant sum of money. Lower custody levels cost less, and while it is not clear exactly what the BOP’s “community supervision” would consist of, one imagines that it will be less restrictive than prison. Home confinement is much cheaper than prison – 24-hour GPS monitoring costs as little as $15 per month.17 And inmates placed in halfway houses typically work, both contributing to the economy and defraying the cost of their supervision.
The PRRA would also get inmates back into the community faster. This would allow these individuals to rebuild their lives and families – both of which are nearly impossible to do from prison. Stronger families make for stronger communities with less crime.18 As such, the PRRA could potentially reduce an individual’s risk of recidivism while simultaneously reducing the crime rates across the board.
Perhaps the most positive aspect of the PRRA is the fact that it will get people away from the toxic environment of the prison faster. The conditions found in most American prisons are atrocious, but that is not the biggest problem with these institutions. Prisons exacerbate health problems,19 socialize individuals towards crime,20 and compromise the development of prosocial skills.21 Shorter stints in prison are a net-positive to the individual and the community in almost every case.
The PRRA suffers from a defect found in most criminal justice reform efforts put forth in the last decade or more. The bill has a hyperfocus on a single concept: the accurate prediction and reduction of recidivism. Indeed, the word “recidivism,” in various derivations, can be found 83 times in the language of the bill.
The concept of recidivism reduction is not bad, in itself. It is, in fact, the “go to” statistic used to judge the success or failure of most penal reform programs.22 But it is a “notoriously slippery concept that is difficult to operationalize and reliably measure”23 that has, according to a survey of ninety studies, at least nine different definitions.24
The PRRA puts all of its eggs in the recidivism basket at its peril. Everything about the bill revolves around predicting the likelihood of an unknowable, future event. Recidivism reduction programs sell because they provide what are believed to be scientifically sound numbers. But true criminal justice reform must begin with eyes wide open, lest quality solutions that may not focus so closely on recidivism be missed.
In addition to these shortcomings, the PRRA would not necessarily reduce the amount of time that a prisoner remains under government control. If the risk of recidivism can be accurately measured, and programs that are proven to reduce recidivism can be developed, should not the amount and length of a prisoner’s supervision ultimately be reduced to zero?
For all of its promise, the PRRA is fatally flawed as a true criminal reform bill. It has become quite popular in legislative circles to target the elusive “low-level drug offender” for relief while excluding most other classes of prisoners. The PRRA, with its 48 categories of excluded prisoners (mostly those convicted of “violent” or sex offenses), is similar to these empty “reform” bills. The bill targets a small part of the federal population for relief while leaving whole classes of prisoners out in the cold.
Focusing reform efforts on “nonviolent,” low-level drug offenders changes very little about the carceral state. According to Marie Gottschalk, “Even if we could release all drug offenders today, without other major changes in U.S. laws and penal policies and practices, the United States would continue to be the world’s warden, and a stint in prison or jail would continue to be a rite of passage for many African Americans.”25In the case of the federal prison system, it has been estimated that “nonviolent,” low-level drug offenders make up no more than 2 percent of the BOP’s population.26 It may be politically expedient to focus on a class of prisoners currently in the public’s favor, but in the case of this federal criminal justice reform bill, doing so comes at the extreme cost of vitiating the intended reform.
Moreover, the exclusion of those convicted of violent offenses ignores a wealth of well-established information about these individuals. First off, there is scant evidence that those with violent convictions recidivate at a higher rate than other prisoners. In fact, in many cases, the reverse is true. For instance, older offenders who were incarcerated for homicides were found to be the least likely of all classes of prisoners to recidivate, especially in the form of violent crime.27 And one study of 400,000 released prisoners found that homicide offenders had the lowest five year recidivism rate, across the board.28
Every legislator worries about a Willie Horton-type of occurrence when considering criminal justice reform options. Excluding prisoners convicted of violent offenses from programs that might result in a shorter sentence or a longer term of community supervision is often how this concern is addressed. This is certainly the case with the PRRA. But this is a nonsensical tactic, as “the current offense that one commits is a very poor predictor of the next offense.”29
Law professor and noted expert on criminal justice issues John Pfaff recently weighed in on the issue of how those convicted of violent crimes are dealt with by legislatures. Pfaff said, “Our current approach to punishing those convicted of violence is almost entirely blind to mountains of sophisticated research about violent behavior. The harsh sentences we impose on people convicted of violent crimes are not buying us the security we think they are: they incapacitate people longer than necessary and provide little deterrence in exchange. It’s a situation that begs for real reform.”30
Violent behavior that results in a criminal conviction is misunderstood by those crafting reform legislation like the PRRA. Pfaff points to the legislative penchant for referring to those convicted of violent crimes as “violent offenders,” instead of what they are – people who committed a violent crime, as evidence of the failure to truly comprehend this large class of prisoners.31 If the violence associated with a particular crime is not a defining state, but a transitory state, as claimed by Pfaff,32 there is no sound reason for excluding this class of prisoners from a reform bill that is specifically designed to reduce recidivism.
The exclusion of those with violent convictions from the benefits of the PRRA is clear political calculation. This is also the case for the other large class of excluded prisoners: sex offenders.
Sex offenders are particularly despised by everyone, in virtually every sense. This sentiment extends to legislators, who must contend with the electorate. Political calculation results in media and public bias driving the policymaker’s decisions, as opposed to research, facts and evidence.33
Thus, it is no surprise to see sex offenders categorically excluded from the benefits of the PRRA. Unfortunately, this exclusion is a significant failure in a bill that is concerned with nothing other than recidivism rates. As a class, sex offenders have an extraordinarily low recidivism rate.34 As is the case with those convicted of violent offenses, the exclusion of those convicted of sex offenses is politically calculated and counterintuitive.
The PRRA is a tragic mixture of good, bad and ugly. Criminal justice reform at the federal level is necessary, but this bill is a false start. Lowering prison populations and reining in runaway costs are important, but these issues should not be addressed in a manner that withholds benefits from large classes of prisoners for nothing other than political expediency.
True criminal justice reform requires a legislative body that is able (and willing) to focus on those convicted of violent offenses.35 Congress should be setting the example, but the states are already running away with reform efforts, 70 percent of which exclude those convicted of violent crimes from any benefit.36
The political calculations associated with poor legislative policy are understandable, but improper. In the case of the PRRA, it can be safely said that the attempted prediction of recidivism will fail in some individual cases. In some instances, it will fail in a huge way. Whether the penal reform involves early release or community supervision, some benefitted prisoners will recidivate.37And there is simply nothing in the research or literature that suggests this is less likely when those convicted of violent or sex offenses are excluded from reform measures.
Perhaps the motive behind the 48 categories of prisoners excluded from the PRRA is punitive in nature. If so, it is a reflection of American attitudes towards crime and punishment. In order to get to the point where real reform of the criminal justice system is possible, and where flawed bills such as the PRRA aren’t all that can be hoped for, societal views on crimes and criminals must change.38As United States Supreme Court Justice Anthony Kennedy once said, “A people confident in its laws and institutions should not be ashamed of mercy.”39
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.
- World Prison Brief. “Highest to Lowest Prison Population Total.” Available at www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid-All.
- Commission on Safety and Abuse in America’s Prisons. “Confronting Confinement.” New York: Vera Institute of Justice (June 2006), 10.
- Gottschalk, Marie, Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press (2015), 9.
- By 2020, experts project that the proportion of elderly people in prison to be between one-fifth and one-third of all prisoners.
See Richard, R.V. and Ed Rosenberg, “Aging Inmates: A Convergence of Trends in the American Criminal Justice System.” Journal of Correctional Health Care13.3 (2007).
- Experts estimate that prisons spend $60,000 to $70,000 per year to incarcerate the elderly — more than twice the cost of the average prisoner.
See Anno, B. Jayne, et al., “Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates.” Washington, D.C.: National Institute of Corrections (2004), 11.
- Pallasch, Abdon, “Prisons Not the Answer to the Crime Problems: Attorney General.” Chicago Sun-Times, August 3, 2009.
- Gottschalk, Marie, Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press (2015), 27.
- Ibid. at 8.
- Gottschalk describes some of these conditions as “brutal cell extractions carried out with the help of trained attack dogs, routine and often unnecessary strip searches and body cavity searches . . . everyday humiliations like forcing male inmates to wear women’s pink underwear . . . double and triple celling inmates, confining suicidal prisoners to 3′ by 3′ ‘squirrel cages,’ and feeding inmates inedible ‘food bricks’ (a mash-up of all that day’s food).”
Ibid. at 135-136.
- From a speech given to the House of Commons on July 20, 1910.
Karpowitz, Daniel, College in Prison: Reading in the Age of Mass Incarceration. New Brunswick, NJ: Rutgers University Press (2017), 163.
- Liem, Marieke, After Life Imprisonment: Reentry in the Era of Mass Incarceration. New York: New York University Press (2016), 19.
- Smith, Paula, et al., “The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences.” Ottawa: Solicitor General of Canada (2002), 9-11.
- Nellis, A. and J. Chung, Life Goes On: The Historic Rise in Life Sentences in America. Washington, D.C.: Sentencing Project (2013).
- Pew Research Center, “Budget Deficit Slips as Public Priority.” Available at www.people-press.org/2016/01/22/budget-deficit-slips-as-public-priority.
- Kleisman, Mark A.R., “Toward Fewer Prisoners and Less Crime.” Daedalus139.3 (2010), 121.
- For example, involvement in a relationship theoretically provides a “stake in conformity,” which reduces the likelihood of criminal behavior due to fears of damaging the relationship.
See Sampson, R.J. and J. H. Laub,Crime in the Making: Pathways and Turning Points Through Life. Cambridge, MA: Harvard University Press (1993).
- Especially diseases such as hepatitis C, tuberculosis and HIV.
See Pettit, Becky, Invisible Men: Mass Incarceration and the Myth of Black Progress. New York: Russell Sage Foundation (2012), 8, 94-96.
- Visher, C.A. and D.J. O’Connell, “Incarceration and Inmates’ Self-Perceptions About Returning Home.” Journal of Criminal Justice40(5) (2012), 386-393.
- Dolovich, Sharon. “Forward: Incarceration American-Style.” 3 Harv. L. & Policy Rev.237 (2009).
- Gottschalk, Marie, Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press (2015), 101.
- Hannah-Moffat, Kelly, “Actuarial Sentencing: An ‘Unsettled’ Proposition.” Paper presented at The Symposium on Crime and Justice: The Past and Future of Empirical Sentencing Research. SUNY at Albany, School of Criminal Justice (September 23-24, 2010), 12.
- Maltz, Michael, Recidivism. Orlando, FL: Academic Press (1984), 61-62.
- Gottschalk, Marie, Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press (2015), 5.
- Sevigny, Eric L. and Jonathan P. Caulkins. “Kingpins or Mules: An Analysis of Drug Offenders Incarcerated in Federal and State Prisons.” Criminology & Public Policy3 (2004).
- Austin, H. et al., “Exploring the Needs and Risks of the Returning Prison Population.” Paper presented for the From Prison to HomeConference (January 30-31, 2002).
- Durose, M.R. et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010. Washington, D.C.: Bureau of Justice Statistics (2014).
- Sampson, Robert J., “The Incarceration Ledger: Toward a New Era in Assessing Societal Consequences.” Criminology & Public Policy10.3 (2011), 823.
- Pfaff, John, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books (2017), 187.
- Ibid. at 191.
- Sample, Lisa L. and Colleen Kadleck, “Sex Offender Laws: Legislator’s Accounts of the Need for Policy.” Criminal Justice Policy Review19.1 (2008), 40-62.
- This is a provocative claim, but one based in the literature. For instance, Langon, et. al. found that released sex offenders are much less likely to be arrested for any offense than are non-sex offenders. The Association for the Treatment of Sex Abusers cited a study which found a 5.3 percent recidivism rate for sex offenders in an amicus brief recently filed with the United States Supreme Court. And Arizona State University law professor Ira Ellman’s research found recidivism rates for sex offenders ranging from 5 to 30 percent. These numbers are all significantly lower than average recidivism rates, which are in the 60 percent range.
Langon, et al., “Recidivism of Sex Offenders Released from Prison in 1994.” Washington, D.C.: Bureau of Justice Statistics (November 2003), 1-2.
DaSilva, Jessica. Bloomberg Criminal Law Reporter. 100 Crim. L. Rep.(BNA) 486 (March 8, 2017).
- Pfaff, John, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books (2017), 11-12.
- Ibid. at 109.
- Gottschalk, Marie, Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press (2015), 188-189.
- Pfaff, John, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books (2017), 227.
- Kennedy, Anthony M., Associate Justice, Supreme Court of the United States, Speech at the American Bar Association Annual Meeting (August 9, 2003).