Criminal justice reform in the U.S. has a long history of repressive outcomes

It’s good news that Congress is finally taking bipartisan action to authorize some modest changes in the federal prison system. But this criminal justice reform, like many of its predecessors, offers the illusion of real reform and has a sting in its tail.

On the positive side, the First Step Act gives federal judges some discretion in sentencing non-violent drug offenders. It also eliminates disparities in crack and powder cocaine sentences, provides incentives to reduce the federal prison population through early release programs, and expands job training, and health and educational programs inside prisons. Moreover, the Federal Bureau of Prisons can no longer shackle pregnant women with impunity. African Americans, who comprise 38 percent of federal prisoners, should get some relief.

The First Step Act (FSA), however, will cover but a fraction of the U. S. prison population since most prisoners are held in state prisons and local jails. And the FSA will not benefit all federal prisoners: those doing time for corporate fraud, government corruption, and peddling opiates, for example, are eligible to be considered for early release programs, while those convicted of violent crimes and abortion-related offenses are ineligible. The legislation also excludes 11,000 prisoners convicted of violating immigration laws, overwhelmingly for non-violent crimes.

The corporate security industry will especially benefit from the FSA’s recommendation to expand the use of electronic monitoring of those confined in home detention after early release, a trend that is under way throughout the criminal justice system. A decade from now I expect that incarceration will be not so much reduced as diversified.

“America is famously ahistorical,” a sardonic Barack Obama observed in 2015. “That’s one of our strengths — we forget things.” We especially forget that many benevolent criminal justice reforms turn out to have a nasty, repressive underside that expands rather than reduces the net of social control. Great harm is often committed in the name of reform.