Dear Mr. Kushner

It appears the recent rumblings within the political landscape of justice reform have led to a potential compromise bill in the Senate looming for September. I’ve watched various reform bills since the 1980’s and can honestly say this is the first bill even remotely close to passage. I’d like to thank you for your efforts in keeping reform in the sights of the administration but also challenge you to think outside the box of the “Right/Left Coalition”, academics and advocates inside the beltway.

From a practical perspective, a Senate compromise bill must have meaningful reforms like the expansion of the safety valve provisions, making the Fair Sentencing Act (FSA) retroactive and reducing some of the more draconian mandatory minimums, especially clarifying the “stacking” in reference to 924(c). These “front end” components included in the Sentencing Reform and Corrections Act (S.1917) were omitted in the First Step Act (H.R.5682) which has caused consternation among many in the advocacy world.

Now that the FSA has been passed in the House, the Senate has the choice to put lipstick on a pig or seize the momentum and be known as the Congress that facilitated a turning point in our nation’s history by replacing the incarceration nation with a more effective and equitable justice system and correctional treatment model. This balancing of sentencing reform and practical prison reform measures can lead to safer prisons and communities by providing the training, education and treatment our marginalized populations deserve in the broader spirit of reformative justice.

I have attended many of the Senate Judiciary meetings on reform over the years and have been a strong opponent to the BOP-prison related reforms as written; mainly the time credit provisions. My criticism stems from my direct experience of over 3 decades working in the trenches of the system with the incarcerated. While Senator Grassley should be commended for being steadfast by insisting on front end reform measures, deeper thought is needed on the prison related aspects of reform legislation.

I beg for circumspection of the current bills which are inadequately written, discriminatory and will take years to fully implement. The prison related measures are not only cumbersome from an administration stand point, they create more bureaucracy and give the Federal Bureau of Prison’s far too much discretion in accomplishing the intended goal of recidivism reduction. I speak on this issue with authority going back to the “Old Law” where people were eligible for release on parole at 33% of their sentence. Below I will frame a simple, practical and cost effective legislative measure that could literally be implemented over night and hope you or someone in the administration has the vision and courage to consider it as a viable alternative to what is currently proposed.

Something that has flow under the radar from July was House Resolution 933 which acknowledged the “War on Drugs has been a failed policy in achieving the goal of reducing drug use, and for the House of Representatives to apologize to the individuals and communities that were victimized by this policy.” While I don’t believe apologies are necessary, this concept helps me better explain the needed good time fix and correctional treatment emphasis in context for reformers, academics and politicians who are not directly involved with prison administration. I commend the people with the administration’s ear like CUT#50, professional athletes, entertainers, and academics but I also believe they are missing practical feedback from a policy and implementation perspective when it comes to both the good time solution and evidenced based correctional treatment programs.

I think most reasonable people will admit the war on drugs and more importantly, “Truth in Sentencing Laws” have been an overall failure especially in regards to our inner city populations. If someone committed a federal crime on October 31, 1987, most sentences had parole eligibility at 33 % of the term and even Life sentences had parole eligibility in 10 years with a 30 year mandatory release date. If that same person committed a crime the day later, on November 1, 1987, they would be required to serve over 85 % of the sentence while the Lifers all will die in jail because there is no longer good time for Life sentences; even for the non-violent drug offenders.

Truth In Sentencing Laws have not only failed our communities but they have created more dangerous institutional environments for staff and the incarcerated because they removed the previous incentives for people to maintain clear conduct and participate in correctional treatment programs. What’s equally troubling is that many of the Lifers who are now elderly are no longer a risk to the community and incur enormous financial costs to tax payers as they age. The overall net gains of truth in sentencing laws were a windfall for, and expansion of, the prison industrial complex, less safer communities, the deterioration of the family unit and for creating the world’s leader in incarceration per capita.

What is needed is simply the return to the normalcy of the “Old Law” (pre 11/1987) good time system which is fair for all sentenced people, allows for safer institutional environments and has incentives for correctional treatment programming and good behavior. The older justice professionals reading this might recall a time in the 1980’s when the federal prison system was a progressive and often emulated penal model. When people participated in programs and earned the maximum amount of what was referred to as “extra” and “statutory” good time, they released to community supervision at approximately 66% of the sentence imposed, provided they maintained clear conduct.

Let me be clear that I am NOT advocating for returning to a parole system (33 %) or an increase in the US Parole Commission bureaucracy! I am only suggesting a return to the middle ground solution and historical normalcy of the good time procedures (66 %) prior to the failed war on drugs (85%).

There are still “old law” people incarcerated in the federal system so the policy, training and overall infrastructure is present for immediate implementation. There is even an assessment tool with static and dynamic factors which can be quickly modified vs the proposed years it will take to study and “develop” a new risk assessment tool. The current proposed time credits under the various crime bills circulating in Congress attempts to re-create the wheel in a convoluted way, giving the BOP far too much discretion on implementation; but more importantly, it discriminates against people of color. In addition, the bills place too much emphasis on single, magical recidivism reduction programs over the individual’s correctional treatment plan and their criminogenic factors.
People are sentenced to prison for the severity of their crime and should not be further punished with the unequal awarding of good time credits simply because it fulfills a political “tough on crime” soundbite as the “war on drugs” did! We need to return to a fairer system with a better balance of treatment vs punishment and that starts with a restoration of sanity to the previous good time system, staffing our prisons appropriately at the treatment level along with more accountability, transparency and responsiveness by the Federal Bureau of Prisons. Many other progressive federal prison reforms can also be accomplished by broadening the existing statutory and policy framework.

While a risk assessment tool and evidenced based programs referenced in the SRACA and FSA are needed; academics and politicians must be aware that incentivized individual programs create waiting lists, manipulation and frustration while academic tools are far less effective than meaningful interaction with correctional treatment professionals once the agency is appropriately staffed to accomplish the mission of unit management as intended and defined in national policy.

I would be happy to come by your office and meet with you or your staff at your convenience to explain these concepts in greater detail.

Sincerely: Jack T. Donson, A Passionate Prison Reformer