How To Stop the Rush To Enact New Federal Criminal Penalties

Detainees walk through the an outdoor yard at the Theo Lacy Facility in Orange, California, on, March 14, 2017.

Over the last several decades, criminal penalties have proliferated and become more severe—employing harsh sentencing laws such as mandatory minimums, life without parole, three-strikes laws, and truth in sentencing. Under these policies, more people are going to prison for longer periods of time in the name of public safety. Even today, when the media reports on conflicts in the community or other social concerns, policymakers reflexively look to address them by adding new criminal statutes and penalties, thereby further expanding the size and breadth of the criminal justice system.

Data and evidence, however, show that longer and harsher criminal penalties provide only marginal improvements to public safety at best. Moreover, they exact severe costs to taxpayers and the communities who have been stuck in cycles of arrest and incarceration. Research repeatedly demonstrates that incarceration, even for brief periods of time, has lasting negative effects on a person’s mental and physical health as well as on their opportunities to obtain stable employment and housing in the future. And mass incarceration has disproportionately affected Black people and their families.

Given these harmful consequences and the marginal benefits of such harsh policies, one would assume that lawmakers undertake a deliberate approach when considering criminal penalties as a solution to a problem. But it is not uncommon for criminal laws to be hastily conceived and voted on, since there are few special procedural safeguards to prevent lawmakers from enacting unnecessary, duplicative, ineffective, or prejudicial criminal penalties—especially at the federal level. Procedural maneuvers such as unanimous consent, suspension of the rules, and discharge from committee without a written report are used to expedite the legislative process at the expense of the deliberate consideration of research and data to inform the criminal justice policymaking process. Even criminalization bills thoroughly vetted through the legislative process are creating criminal penalties without consideration of overlap with existing prosecutable offenses or review of evidence-based policy approaches that could address the root causes of an issue.

The ease with which Congress can enact a criminal penalty is exemplified by the sheer volume of the federal criminal code today. There are approximately 5,000 criminal penalties scattered across the federal code, and the number of federal statutes that carry a criminal penalty has increased by 50 percent since the 1980s. In recent years, Congress has enacted criminal justice reform measures—and most recently attempted to tackle policing reform. These new approaches to criminal justice call for Congress to also take a more intentional review of criminal penalties. In order to prevent quick passage of new criminal statutes or bills that increase criminal penalties, Congress should adopt procedural measures that inject more deliberation and slow down the legislative process.

Congress should require independent analysis of the potential impact of criminalization legislation

Adding procedural hurdles to encourage deliberation during the legislative process is not a new concept. In fact, at the federal level, all congressional bills require independent analysis by the Congressional Budget Office (CBO) to predict the potential budgetary impact of the legislation. CBO analysts study the language of legislative provisions; research and quantify their potential effects; and report their findings to Congress in CBO cost estimates. These reports include discussion of the bill’s major provisions and how they change current law; estimates of the bill’s budgetary effects and how they compare with estimates from other sources; and key elements of the analysis, including data sources, academic research, and significant sources of uncertainty.

For legislation that adds to the criminal code, Congress should adopt a similar process that requires lawmakers to receive an independent assessment of the new provisions so they have concrete data and research on the bill’s potential impact to the criminal justice system before they vote a bill up or down. Many states across the country have recognized the value of such assessments with a specific eye to the potential for creating racially disparate impacts. States including Iowa, Minnesota, Connecticut, Oregon, New Jersey, and Florida have established processes to produce racial impact statements that can provide disaggregated data and predictions to assess the potential impact of a new or amended criminal penalty.

Replication of such impact assessments at the federal level is an urgently needed tool that is readily accessible with a minor change to current law. Section 4047 of Title 18 of the U.S. Code already requires a very limited and underutilized form of a prison and sentencing impact assessment. The statute authorizes the U.S. attorney general and U.S. Sentencing Commission to conduct prison and sentencing impact assessments on legislation submitted by the judicial or executive branches. Currently, these assessments are meant to predict the bill’s impact on federal “prison, probation, and post prison supervision populations.”

Section 4047 in its current form, however, is deficient in two respects. First, the statute excludes from its requirements bills proposed by members of Congress, which constitute the vast majority of legislation that Congress considers. Legislators may request an impact assessment, but Section 4047 does not require them to have one performed. This option should become a requirement, especially for bills that advance through the legislative process. Prior to any debate and a vote on the floor of either the U.S. Senate or the U.S. House of Representatives, the bill should have been analyzed and the impact statement distributed to legislators and entered into the public record. This new step in the legislative process should include some mechanism to ensure the analyses are not unnecessarily circumvented. For example, Congress could prohibit final passage of any legislation that adds or increases a criminal penalty if an impact assessment is not provided prior to a vote for final passage.

Second, Section 4047 currently limits assessments to analyze only the impact the new provision would have on prisons. While the effect on the federal criminal justice system is certainly an important consideration, this limited assessment does not provide data points on whether there would be any disproportionate impact based on race or other characteristics; whether the statute is duplicative; whether the statute would even be effective in deterring the activity that is criminalized; or whether criminalization is the best way to address a particular problem.

Sourcing data for comprehensive prison and sentencing impact assessments

Requiring a comprehensive impact statement of this kind would be dependent on the type of offense that the bill is considering as well as whether the legislation proposes a new criminal offense or a sentencing enhancement. For an enhanced penalty of an offense that is currently criminalized under federal law, the assessment would be rather straightforward and could be based on existing data of people convicted of the underlying offense. For a new criminal offense, the assessment could be based on comparisons to state analogues or data on related criminal offenses.

Furthermore, the assessments should consider additional research on known disparities produced by government agencies, academic institutions, and peer-reviewed journals to understand a penalty’s potential disparate impact. Such analyses should consider demographics known to affect rates of arrest, prosecution, and conviction, including race, socioeconomic status, gender, and age. For example, empirical analysis from the New Jersey Sentencing Commission has shown that drug-free-zone laws resulted in a “devastatingly disproportionate impact on New Jersey’s minority community” because they targeted densely populated urban neighborhoods in which low-income communities of color are more likely to live.

Conclusion

Enacting criminal laws and penalties is a serious matter, and the legislative process should reflect the gravity of their impact. Congress must institutionalize a more deliberate and evidence-based process prior to voting to criminalize conduct and penalize people with harsh sentences. Requiring an independent assessment with sobering information on the impact of legislation that adds or increases criminal penalties is one important way to achieve this goal.

Lea Hunter is a research associate for Criminal Justice Reform at the Center for American Progress. Ed Chung is the vice president for Criminal Justice Reform at the Center.