FEDERAL CRIMINAL JUSTICE REFORM: OPTIONS FOR POLICYMAKERS 2025 - 2029
In November of 2024, Americans will head to the polls to decide who will represent them in the White House and Congress. As voters choose their leaders, public safety is a top priority, with Americans also citing the size and cost of the criminal justice system as concerns. Policymakers have a variety of options to address these concerns, backed by a strong foundation of evidence and bipartisan support. Unfortunately, there are also policy choices that rely more on sound bites and anecdotes than evidence, which make the criminal justice system inhumane, ineffective, and expensive, placing an unfair strain on families and communities.
This report serves as a guide for actionable policies, with bipartisan support, that will make the criminal justice system more safe, accountable, and fair for incarcerated people, the professionals who work in the criminal justice system every day, and the public. In each section of this guide, we have included policies that can advance immediately, before the end of the next session of Congress (the 119th Congress), and before a new president takes office in 2029. All of these policies have enough support to become law.
Table of Contents
67% of voters believe the criminal justice system needs either a complete overhaul or major reform
In November, Americans will vote for President, a third of the U.S. Senate, and every seat in the U.S. House of Representatives. Among the issues top of mind for many voters is public safety and criminal justice policy. Regardless of the outcome of the election, there are a wide variety of criminal justice polices that are popular with voters across the political spectrum. Most of these policies have been introduced as legislation or executive action, have broad bipartisan support, and are based on evidence of what works, showing that they are not just vague concepts but actionable policy solutions. This report is a guide for policymakers ready to act on voters concerns with ready-to-go solutions that take into account the size, cost, and effectiveness of the criminal justice system. These effective policies touch every part of the criminal justice system, some making federal reforms, and others incentivizing state and local reforms, including:
Preventing and solving crime: the Strengthening Communities Through Summer Employment Act, the VICTIM Act, and regularly assessing the federal drug schedule will ensure law enforcement and communities have the tools they need to prevent and rapidly respond to drug enforcement concerns and other crimes.
Evidence-based sentencing reform: the EQUAL Act, the Smarter Sentencing Act, the First Step Implementation Act, bringing back federal parole, reforming the executive clemency process, and strengthening the Juvenile Justice and Delinquency Prevention Act will ensure expensive prison space is prioritized for violent offenses.
Increasing prison oversight and effectiveness: the Federal Prison Oversight Act and ending or significantly limiting solitary confinement will ensure that prisons are safe for incarcerated people and staff, protecting rights and safety.
Reducing barriers to reentry: the Due Process Continuity of Care Act, the Reentry Act, the Improving Mental Health in Re-Entry System Act, and the Safer Supervision Act will ensure that people are ready to return to their communities when they leave jail or prison.
Reducing collateral consequences of incarceration: the Clean Slate Act, the Fresh Start Act, the Begin Again Act, the Driving for Opportunity Act, restoring SNAP and TANF to formerly incarcerated people, ending the ban on drivers’ license suspension for drug offenses will ensure that people who have successfully reintegrated truly get a second chance.
Despite polarization on many issues, these policies are unique in that all of them have bipartisan support, and all of them are actionable. In this report, we discuss each policy change, the evidence behind it, and analyze how soon action can be taken. Our goal is for this report to serve as a guide to the President and Congress on not only how to change the criminal justice system to be more humane, safe, and cost effective, but how to make change now.
Whichever party prevails in control of the House and Senate this November, the majorities are likely to be narrow, making legislation with bipartisan support the only viable path to advance a bill into law. From sentencing, to prison oversight and effectiveness, to reentry, there are several bills that have been introduced during the current session of Congress with bipartisan momentum that should immediately be considered by the 119th Congress, if not sooner. Taken together, the legislation below would preserve accountability while also making the criminal justice system more fair, all while reducing recidivism and costs.
A. PASS EVIDENCE-BASED SENTENCING REFORM
Nearly half of people in federal prison are serving sentences for drug offenses, by far the largest share of offense types. Most people in federal prison for drug crimes have sentences longer than 10 years, and federal law requires at least 85 percent of these sentences to be served. By comparison, the largest share of offense types in state prisons is violent crime. Taxpayers spend about $43,000 per federally-incarcerated person, per year, with the understanding that this investment keeps communities safe. And yet, the recidivism rate for people leaving federal prison is 43 percent.
In 2018, Congress passed, and President Donald Trump signed the First Step Act, bipartisan legislation that safely reduced some federal drug sentences and created recidivism reduction programming in prisons. People who participate in the First Step Act’s programming have a much lower recidivism rate than other populations exiting federal prisons, clocking in at 12 percent vs. 43 percent for the general population. The First Step Act is working, and Congress and the President can double down on its success by enacting the following legislation.
We can’t change the past, but we can make for a better future. We can’t undo the disparities that have disproportionately sent African Americans to prison, but we can make for a more equal and more just future. - Senator Cory Booker
1. Pass The EQUAL Act
The EQUAL Act would eliminate the sentencing disparity between crack and powder cocaine, a vestige of the War on Drugs that disproportionately harms Black communities. Congress has made several attempts to reduce this sentencing disparity, first by passing the Fair Sentencing Act of 2010, which reduced the disparity from a crack-to-cocaine ratio of 100:1 to 18:1, and then by passing the First Step Act, which among other policies, made the Fair Sentencing Act retroactive. Yet the disparity remains. 77 percent of people sentenced under these harsh laws are Black, despite no chemical difference between crack and powder cocaine.
The EQUAL Act has overwhelming bipartisan support in the House and Senate. In 2021, the bill passed the House of Representatives by a vote of 361-66. In the Senate, the bill has been cosponsored by Democrats and Republicans, but it has yet to reach the Senate floor for a vote. The EQUAL Act is supported by a broad cross-section of organizations, including law enforcement, and has the support to immediately advance in Congress.
2. Pass The First Step Implementation Act and Smarter Sentencing Act
While the EQUAL Act targets drug sentencing disparities related to crack cocaine, there is also bipartisan agreement that many other federal drug sentences are too long and too costly. The First Step Implementation Act would directly build on the First Step Act’s provisions. There are more than 10,000 people in federal prison that would have shorter sentences if they were sentenced today post-First Step Act, and the First Step Implementation Act addresses these disparities by allowing courts to apply more First Step Act provisions retroactively. The bill would also consider criminal history more holistically before requiring mandatory minimum sentences.
The Smarter Sentencing Act would also reduce mandatory minimum sentences for federal drug offenses, allowing judges to determine on a case-by-case basis when the harshest sentences should apply, ensuring people are held accountable but not burdened with excessively long sentences. The bill would preserve sentencing enhancements for violent crimes. Both of these bills have been introduced several times, with bipartisan support, and can advance in the 119th Congress.
3 out of 4 people support ending federal mandatory minimum sentences
3. Reinstate Federal Parole
In addition to long sentences, unlike in state prison systems, there is no way for people in federal prison to meaningfully reduce how much time they serve. With few exceptions, a person sentenced under federal law is required to serve at least 85 percent of their sentence in prison. Even under the reforms in the First Step Act, which expanded the ability of incarcerated people to earn credits to shorten their sentences by participating in evidence-based programming, federally incarcerated people must still serve 85 percent of their sentences in prison. This is because Congress abolished federal parole for all crimes after 1987. This change was part of an effort to enact so-called “truth in sentencing” laws, a trend that ballooned costs without a public safety return on investment. However, the public believes most people in federal prison for drug offenses should be able to reduce the time they serve if they participate in recidivism reduction programming.
Congress and the President should bring back the possibility of parole before a new president takes office in 2029, using the First Step Act’s earned time system and successful state-level supervision programs as a model. People in prison should be required to complete First Step Act recidivism reduction programming before being parole eligible.
We know these programs are successful at reducing recidivism, with First Step Act data showing a 30 percent reduction in re-offenses, so we should double down on them in a restored parole program. We also know that state level supervision programs work best when they use graduated sanctions that are swift, certain, and fair, while focusing resources on the highest-risk individuals. The federal parole program should bake in these lessons by letting people earn time off their parole by being compliant and successfully reintegrating in their communities. Lastly, the duration of parole should be capped so that it is only long enough to ensure rehabilitation and community safety, never longer than the initial sentence. This will further reduce taxpayer costs, increase public safety, and give incarcerated people hope - and a path - for a second chance.
B. INCREASE PRISON OVERSIGHT AND EFFECTIVENESS
The Federal Bureau of Prisons incarcerates nearly 160,000 people nationwide, in 122 prisons, staffed by 35,000 people. Despite the bureau’s size and scope, it is consistently underfunded, plagued with violence and staffing shortages, and relies on dated processes that can exacerbate violence. Legislation is needed that will increase transparency and improve conditions in prison – ensuring those who live and work in correctional facilities get adequate resources and a safe and productive environment.
1. Pass The Federal Prison Oversight Act
News headlines and government reports show that there is not meaningful, independent oversight over the Bureau of Prisons. Accounts from incarcerated people and prison staff further demonstrate that there are not useful channels to report issues at prisons, whether concerning deteriorating conditions or potentially deadly safety issues. The Federal Prison Oversight Act would address both of these problems by giving the Department of Justice’s (DOJ) Inspector General the ability to conduct comprehensive, risk-based assessments of prisons, and by creating a Bureau of Prisons ombudsman, who can initiate an investigation based on a complaint from a corrections staff member or incarcerated person. This bill has bipartisan support in both the House and Senate, and it passed the passed the House by a vote of 392-2 in May 2024. This bill has the support to immediately pass the Senate.
2. End or Significantly Limit Solitary Confinement
More than 10,000 people are in some form of solitary confinement in the Bureau of Prisons every day. The federal system uses solitary confinement, on average, more than state systems, and a disproportionate number of Black people are placed in solitary confinement.
At the same time, the Bureau of Prisons recognizes that solitary confinement does not serve as an effective deterrent to misconduct and can often exacerbate issues, and data shows that people placed in solitary confinement, even for a few days, are at increased risk of mental health issues and self harm. This is despite evidence of more effective ways to mitigate violence and other infractions. President Joe Biden has ordered the Justice Department to reduce the use of solitary confinement, and several bills have been introduced in Congress to reduce or eliminate it. Before the end of the 119th Congress, this practice should be dramatically curtailed in the federal system.
C. REDUCE BARRIERS TO REENTRY
Reentry is a vital component of a well-functioning justice system: 95 percent of people in federal or state prison will eventually be released. In 2023, the Federal Bureau of Prisons alone returned more than 41,000 people to their communities. Unfortunately, a prison sentence has a long tail, even after it is completed.
Arbitrary, often long terms of post-prison supervision create onerous conditions for returning citizens that build roadblocks to reentry rather than incentivizing success. Even if a term of supervision is successfully completed, a criminal record can harm a formerly incarcerated person’s ability to get a job, housing, and more. Legislation is needed to reform supervision and ensure a criminal record does not become a lifelong burden.
1. Pass The Safer Supervision Act
Post-prison supervision is intended to provide additional monitoring for people considered to be a high risk of recidivism. However, supervision is instead imposed for arbitrarily long durations without a regard for public safety. More than 110,000 people are currently on federal supervised release, which costs taxpayers a half a billion dollars each year. The size of this population combined with the onerous requirements that both hinder returning citizens’ ability to succeed and put a strain on probation officers, whose caseloads are so large that they are not able to focus on higher-risk individuals, creates a wasteful system that doesn’t adequately protect public safety.
The Safer Supervision Act is bipartisan, bicameral legislation that would determine supervised release lengths and conditions based on individualized assessments and incentivize good conduct. It has been endorsed by a broad spectrum of organizations and can advance immediately.
2. Pass The Clean Slate Act and Begin Again Act
One of the major challenges returning citizens face is difficulty finding housing, employment, and other necessities because of the requirement to disclose a criminal record. These requirements, even for minor offenses, can greatly hinder reentry and increase the risk of recidivism. These restrictions also have a real economic cost. A 2017 study estimated that national loss of earnings because of justice system involvement costs about $372 billion. Business groups, law enforcement, and many others have recognized that these policies do not improve public safety and harm the economy, and 12 states have passed legislation to automatically seal criminal records or expunge them for certain offenses. The federal government has also started to act, passing the Fair Chance Act of 2019 on a bipartisan basis, signed into law by President Trump. This act limited the consideration of a criminal record in federal hiring; however, despite these actions, most formerly incarcerated people convicted of federal offenses must disclose this history when making routine decisions.
The Clean Slate Act would automatically seal the federal records of individuals convicted of low-level, nonviolent drug offenses after they successfully complete their sentence. The Begin Again Act would expunge criminal records related to marijuana possession. Both bills are bipartisan and can pass in the 119th Congress or sooner.
3. Restore SNAP and TANF Benefits
The welfare reform law of 1996 imposed a ban on the Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) and Temporary Assistance for Needy Families (TANF, cash assistance payments to low income families with children) for anyone with a drug felony conviction. While states have the option to opt-out of this ban, 25 states still ban both programs for those with drug convictions. There is evidence that the lack of access to these programs can increase recidivism and harm the wellbeing of children, and since red, blue, and purple states have opted-out of the ban, there is clear bipartisan support for ending it altogether. Legislation has been introduced to repeal the SNAP ban, but not the TANF ban. Congress should pass and the President should sign a repeal of both bans before 2029.
With polling showing a razor-thin margin, either of the two major party candidates for President could take the Oath of Office next January. Both candidates have a track record of driving forward bipartisan criminal justice reform priorities, and these reforms are not only good policy, they’re popular with voters across racial and demographic lines. There are several executive actions that optimize the President’s power to give second chances through clemency, and there are others that allow a more rapid response to drug enforcement concerns. Either candidate could advance these orders on day one of the 2025-2029 term.
A. REFORM THE CLEMENCY PROCESS
Presidents have broad constitutional authority to use executive clemency, and this power can and should be used to ensure people are treated fairly. This is particularly true when it comes to drug sentences, where Congress has changed several laws over the last decade to reflect a broad view among the public that lengthy sentences for these crimes are not acceptable – costing too much and not improving public safety. Unfortunately, laws passed by Congress are not always retroactive, meaning thousands of people continue to be punished under rules their representatives consider to be outdated, costly, and unfair.
Both President Biden and President Trump have used the clemency power to reduce hundreds of drug sentences that are not aligned with current law, and President Biden has recognized that the class of federal marijuana punishments are out of step with Americans’ views. These are positive steps, but we urge the President to fully lean into the clemency power to address classes of offenses that continue to result in unjustly harsh consequences and to fix the broken pardon process.
1. Use Commutations to Make the System Fairer
a. Retroactively Apply First Step Act Provisions
As referenced earlier, the First Step Act was bipartisan legislation signed by President Trump that safely reduced some federal drug sentences. However, not all of these changes were made retroactive, meaning that more than 6,000 people remain in prison serving drug sentences that are longer than they would be if they were sentenced today. We also have evidence that the sentencing changes in the First Step Act maintain public safety, since the recidivism rate for people who have been released under this law is about 30 percent lower than the average for all federal prisons. The President should immediately grant commutations to the more than 6,000 individuals who would benefit from retroactively applying sections 401 and 403 of the First Step Act.
b. Retroactively Fix Crack Cocaine Sentencing Disparity (portion of EQUAL Act)
Thousands of people are currently in federal prison serving a crack-related sentence that would be lower than if they were sentenced today, despite no pharmacological differences between crack and powder cocaine, and a disproportionate number are Black. In 2022, the Attorney General issued a memorandum for all federal prosecutors that recognized these disparities and ordered that crack and powder cocaine sentences should be treated equally. This is the correct policy for the DOJ, and the President should further correct this disparity by identifying and commuting the sentences of people currently serving a prison sentence for a disparate crack sentence in the next year.
c. Take Accountability for Women Sexually Assaulted While Incarcerated
More than 16,000 women are incarcerated in federal prison. The vast majority of women in federal prison have been convicted of a drug offense, and only 3 percent have been convicted of a violent offense. At the same time, incarcerated women are particularly susceptible to violence, especially sexual violence, and the Bureau of Prisons has a dismal track record of investigating these crimes. Sexual violence at one federal prison was so horrific that the prison was hastily closed, and women who experienced sexual violence at this facility continue to face retaliation.
A prison sentence is not a sentence for human rights abuses, and women who experience sexual violence in prison should have their sentences commuted. Further, sexual abuse is an often underreported crime, so when the BOP closes a facility because of widespread sexual abuse, every person held in that prison deserves to be considered for clemency. Transferring possible abuse victims to another prison in a system where abuse may continue is not acceptable.
2. Create an Interagency Task Force on Second Chance Pardons
While there is an interagency process to guide the executive clemency process, with thousands of pending applications for commutations and pardons, this infrastructure is quickly overwhelmed without strong guidance from the White House. In particular, thousands of people have filed pardon applications, long after completing their sentences, because a criminal record can be a barrier to employment, housing, and other necessities for a lifetime. Without an expungement or record sealing process for federal criminal history, a pardon from the President is often the only way a formerly incarcerated person can fully reintegrate into society.
In addition to the immediate need for commutations referenced above, the President should create an interagency task force to determine how to expedite the pardon process for people with criminal histories who have served their sentences and have not recidivated. This will allow the DOJ Pardon Attorney to focus on cases that require more detailed analysis. This task force should release detailed recommendations in the next year that are implemented before 2029.
B. REGULARLY ASSESS THE DRUG SCHEDULE
The federal government classifies controlled substances into five schedules, or categories, that attempt to determine each drug’s potential for abuse and value of medical use, with Schedule I being the highest potential for abuse and lowest value medical use. However, the federal drug schedules are also used to determine enforcement priorities, ability to perform research, and federal sentencing. While an interagency process between the Department of Health and Human Services (HHS), Drug Enforcement Administration (DEA), and the White House is responsible for ensuring the drug schedules reflect the most current science and statistics about misuse, the schedules significantly lag behind what is known about these substances. For example, despite lacking evidence of its addictiveness and dozens of states legalizing it for recreational use, the process to remove marijuana from Schedule I, where it is currently considered as harmful as heroin, did not begin until Spring 2024.
President Biden was correct to prioritize shifting marijuana to a less serious Schedule III listing, but the federal drug schedules should be regularly assessed by the interagency process to ensure they reflect the most current science and impact these substances are having in American communities. The failure to do so hinders research, lengthens prison sentences, and skews federal law enforcement’s priorities. All five drug schedules should be evaluated before 2029 to determine what should shift, and HHS and the DEA should establish a process to ensure this regularly occurs in future Administrations.
In addition to reforms to the federal criminal justice system, there are several laws, bills, and executive actions that play a role in incentivizing state-level reforms. These programs are important and they work, touching every aspect of the criminal justice system from crime prevention and crime fighting, to reentry and collateral consequences to incarceration.
1. Pass The Strengthening Communities Through Summer Employment Act
Youth employment programs are a boon to the economy, but evidence also shows that they reduce the risk of both victimization and crime. The Strengthening Communities Through Summer Employment Act is bipartisan legislation that would create a new competitive grant program for youth employment programs, expanding job opportunities for youth that improve economic and criminal justice outcomes. The bill has been endorsed by chambers of commerce as well as law enforcement. The Strengthening Communities Through Summer Employment Act can pass by the end of the 119th Congress.
2. Pass The VICTIM Act
While violent crime is declining from a post-pandemic high, the rate of unsolved violent crime has risen dramatically over the past five years. Solving these crimes is not only critical to public safety, but the steep drop in clearance rates may also be contributing to the perception of rising crime. The VICTIM Act works to address this issue by providing resources to local law enforcement for training, hiring, and investments needed to increase violent crime clearance rates. The bill is has the widespread support of the public, and it is bipartisan and supported by law enforcement. If Congress does not pass the bill in 2024, this bill can pass immediately in the 119th Congress.
3. Increase Access to Mental Health and Substance Abuse Treatments in Jail and Reentry
Drug overdose is a leading cause of death in the U.S., with more than 107,000 deaths in 2023. In 2022, Pew reported that 1.1 million people with drug dependence served time in jail or prison, and only 1 in 13 received treatment in prison. At the same time, an incarcerated person’s risk of death within two weeks of release is 12 times that of other individuals, with the leading cause of death being a fatal overdose.
Often, this lack of treatment is due to Medicaid rules, which terminate coverage to anyone in jail, regardless of whether they were convicted of a crime, and do not allow the coverage process to restart until release.
Together, the Due Process Continuity of Care Act and the Reentry Act are bipartisan bills that would address these issues. The former would ensure people in jail awaiting trial are able to maintain Medicaid coverage, and the latter would allow incarcerated people to begin the Medicaid application process 30 days prior to release, reducing the risk of a gap in coverage. This legislation can pass in the 119th Congress.
Furthermore, the Improving Mental Healthcare in the Re-Entry System Act would provide resources to federal, state, and localities to provide mental health screenings and referrals to people leaving jail and prison. This bill is based on a successful state-based model and is worthy of consideration.
4. Pass The Fresh Start Act
While there is no mechanism in the federal system to expunge or seal records, 12 states have done so. These states are geographically and politically diverse, showing that there is broad appeal for this policy and that it is supported by law enforcement, business associations, and more. Congress should incentivize more states to make these changes by passing the Fresh Start Act, which would provide grants to states that automate their criminal record programs, ensure states retain these records, and other important changes.
5. End Drivers’ License Suspension for Drug Offenses and Unpaid Fees
In the U.S., where 85 percent of people drive to work, suspending or revoking a driver’s license can have devastating financial consequences and should not occur unless there is a direct link between the offense and public safety.
a. Pass the Driving for Opportunity Act
Twenty-five states suspend or revoke drivers’ licenses because of the inability to pay fines and fees. This debt-based punishment can exacerbate poverty issues and force law enforcement to prioritize fine enforcement over public safety. Congress should pass the Driving for Opportunity Act, a bipartisan bill that would provide incentives to states to restore licenses in these circumstances. This bill can pass before the end of the 119th Congress.
b. End the Solomon Lautenberg Amendment
A federal law passed in 1992 requires the Federal Highway Administration to withhold 8 percent of federal highway aid to any state that does not revoke or suspend drivers’ licenses of people convicted of drug offenses. The law requires these suspensions or revocations regardless of whether the drug offense was committed while driving a vehicle. States may apply for a waiver from the federal law, but the process is convoluted and lengthy.
The U.S. Department of Transportation should make it easier for states to apply for these waivers and should conduct targeted outreach in states where bans are still in place – working with state officials to complete the waiver process. The Executive branch should take action before 2029.
6. Strengthen the Juvenile Justice and Delinquency Prevention Act (JJDPA)
The JJDPA is the guiding federal standard for youth involvement in the justice system. The law, originally passed in 1974 and reauthorized in 2018, includes four core requirements intended to ensure youth are appropriately cared for and protected while maintaining community safety. However, a change to the JJDPA, and one modeled after it, will ensure the most current evidence guides juvenile justice policy.
a. Further Deinstitutionalize Status Offenders
One of the JJDPA requirements states that youth may only be held in secure confinement for a “status offense,” an offense that would not be a crime if the youth were an adult (such as skipping school), if there is a valid court order. In 2018, the valid court order exception was significantly narrowed, further limiting the incarceration of youth for status offenses. However, with evidence showing that incarcerating status offenders does not serve as an effective deterrent, does not reduce recidivism, and may increase the risk of committing more serious offenses, Congress should pass the Prohibiting Detention of Youth Status Offenders Act, which would ban this practice entirely.
b. Protect Youth Victims of Trafficking and Domestic Violence
Youth may become involved in the justice system because they are victims of trafficking, and states that do not pass safe harbor laws may be prosecuting victims. Evidence shows that screening justice- involved youth to determine if
they are victims of trafficking can help ensure they receive victim services instead of or in conjunction with punishment. However, 21 states have not passed laws to protect trafficking victims. Using the JJDPA as a guide, Congress should pass legislation that incentivizes state’s passage of safe harbor laws by developing best practices and providing technical assistance and grant funding to implement protections. Red and blue states have passed safe harbor laws, demonstrating that this issue has bipartisan support, and federal legislation could pass in the 119th Congress.
While political rhetoric often keeps Washington in a state of gridlock, criminal justice policies that keep communities safe, save taxpayer dollars, and make the justice system fairer continue to be backed by a broad consensus. This report shows that these consensus policies can touch every area of criminal justice, from pretrial, to sentencing, to prison conditions, to reentry. Further, some of these policies require legislation, while others can be achieved through executive action, demonstrating that both branches can act now to make improvements to the criminal justice system with the full confidence that their actions will be popular across the country. We hope that this report will serve as a guide for policymakers taking the Oath of Office in January 2025, so that the criminal justice system is more humane, effective, and less expensive, reducing the strain on families and communities.