In some ways that’s not saying much; experts expect the initial impact to be quite modest. Most incarcerated Americans are in state prisons, and the First Step Act affects only those in federal custody. “Its direct overall impact is going to be pretty slight — I think even its proponents admit that,” said John Pfaff, a law professor at Fordham and the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
But even if that’s true in percentage terms, for many people, the new law will be a great blessing. Among other things, it retroactively applies a law that reduced the disparity between sentences for crack and powder cocaine, which could make around 2,600 prisoners eligible for immediate release. It also allows inmates to earn more time off for good behavior, gives judges more discretion on draconian mandatory minimum sentences, and requires that inmates be incarcerated closer to their families.
Further, the fact that the bill is being supported by Trump — a man who fetishizes law and order and openly encourages police violence — changes the politics of criminal justice going forward. In 2016, the sentencing reforms in the First Step Act were seen as moderate, Chettiar told me. Now they are part of a bill with Trump’s conservative imprimatur. “That means that progressives and reform-minded moderates are going to need to bring forward much bolder proposals,” she said.
This moment, where conservatives are actually competing with liberals to find ways to free at least some prisoners, is the culmination of a transformation on the right that’s gathered speed over the last decade. Charles Colson had prepared the ground with Christian conservatives, mobilizing evangelicals on behalf of prisoners. That work then intersected with the Tea Party’s hostility to big government, a story David Dagan and Steven Teles tell in their book “Prison Break: Why Conservatives Turned Against Mass Incarceration.”
But it is also a product of something more personal and less ideological. One way to turn a right-leaning person into a prison reformer is to expose him or her to the realities of the system. I’m not quite cynical enough to believe that Trump wants to ease federal prison conditions because he and his children might be indicted — I assume he agreed to get behind the First Step Act because he was desperate for a win. But many of the people who’ve tried to move the Republican Party toward criminal justice reform have seen prison, or at least criminal prosecution, firsthand.
The most notable example is Kushner, whose father — at the time a prominent Democratic donor — spent 14 months in prison after pleading guilty to tax evasion, witness tampering and making illegal campaign donations.
Then there’s Colson, former special counsel to Richard Nixon, who founded Prison Fellowship, his Christian nonprofit, after serving seven months for obstruction of justice in connection with the Watergate scandal.
Kevin Ring, president of the criminal justice reform organization Families Against Mandatory Minimums, is a former Republican Hill staff member who once helped draft a law imposing mandatory minimums for methamphetamine dealers. “Back then, I thought prison and sentencing reform were problems that only plagued ‘others’ — the bad people, the wayward children from broken homes, the criminal class,” he wrote in USA Today. Then he went to prison himself for his role in Jack Abramoff’s illegal lobbying scheme and learned the brutal cost of incarceration to prisoners’ families.
The conservative former newspaper magnate Conrad Black, a Canadian, became an outspoken opponent of America’s prison industrial complex after spending 37 months in a U.S. prison for fraud and obstruction of justice. Bernard Kerik, a onetime bodyguard to Rudy Giuliani who rose to become New York City police commissioner, became an advocate for prisoners after serving three years in prison for felonies including tax fraud and making false statements to the federal government. Patrick Nolan, a tough-on-crime conservative who once led Republicans in the California State Assembly, turned against mass incarceration after being sentenced to 33 months in connection with a bribery scandal, and is now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform.
Even Charles Koch, the Republican megadonor and major financial backer of criminal justice reform, was inspired by his own brush with the law. In 1995, his company was indicted on 97 environmental crime charges. “It was a really, really torturous experience,” Mark Holden, his chief counsel, told The Wichita Eagle. “We learned firsthand what happens when anyone gets into the criminal justice system.”
These histories suggest that, ironically, mass incarceration might end sooner if more white-collar criminals were locked up. A recent survey from the nonprofit FWD.us and Cornell University showed that almost half of American adults have had an immediate family member in jail or prison. But the penal system disproportionately affects poor people and people of color, those who have the least say in creating it. Again and again, when people who are used to being treated with a modicum of decency and respect confront the reality of American prison life, they are stunned and demand change.
And now, at last, we are close to getting it, at least for some. Perhaps there’s a genuine silver lining to the deep corruption of the Republican Party. Modern conservatism can no longer ignore the interests of people accused of committing crimes.
This article originally appeared in The New York Times.