Simple Justice: An Overview of Justice Reform in The 115th Congress

Issue Brief l October 2017 FreedomWorks.
org
Simple Justice: An Overview of Justice

Reform in the 115th Congress
Jason Pye, Christina Herrin, and Sarah Anderson

Summary
Justice reform and reinvestment is an issue that affects all Americans, and one on which
Republicans and Democrats alike can and have come to agreement. The United States
has the highest incarceration rate in the developed world, resulting from over-
criminalization and excessively strict sentencing laws, not from an innately criminally-
inclined population.
Over-incarceration has created a multitude of problems for American society. Public

safety is threatened by wasteful use of limited resources that leaves dangerous criminals
on the streets. This is compounded by a lack of effective recidivism reduction and
reentry programming in prisons, releasing offenders back into society only to commit
more crimes. Spending problems grow out of the exorbitant cost of imprisonment,
especially for lengthy sentences imposed by broad-sweeping federal laws.
The criminal penalties attached to what is estimated to be more than 400,000 federal
regulations, combined with lack of mens rea protections, imprisons individuals who are
of innocent mind and pose no threat to society. Imprisoning these individuals not only
increases federal and state spending, but also unnecessarily exposes non-criminals to
the criminal justice system.
Difficulty reentering into society is a massive factor driving up recidivism rates,1 and it is
this phenomenon corrections reform works to reduce. By using evidence-based
programming to educate and mentor prisoners during their imprisonment, as well as
limited record-sealing and expungement for specific juvenile cases, we can proactively
work against unintentionally creating career criminals.

1
Recidivism is defined different ways over different amounts of time. Typically, states measure this in rearrest rates or reconviction rates over three to five years.
The U.S. Sentencing Commissions March 2017 study, The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders, measure both rearrest
and reconviction rates of federal offenders released in 2005.
FreedomWorks | 400 North Capitol Street NW Suite 765 | Washington, DC 20001 | (888) 564-6273 1

States have been the leaders in tackling this problem, with Texas, Georgia, and South
Carolina serving as primary examples to the successes of justice reform in saving
taxpayer money and simultaneously reducing both crime and recidivism rates.
A common misconception is that criminal justice reform is a left-wing issue, as

Republicans historically have been known for being tough on crime; a perception
furthered by some current political figureheads, such as Attorney General Jeff Sessions.
Nevertheless, this conventional wisdom is aptly debunked by the actions of the
aforementioned states in taking leadership roles on the issue. Rather, it is the federal
government that has lagged behind in garnering public support for common-sense
changes that will keep our nation safer while saving taxpayers money.
Proven champions of justice reform, including Senate Judiciary Committee Chairman

Chuck Grassley (R-Iowa), Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.), and Reps.
Doug Collins (R-Ga.) and Justin Amash (R-Mich.), have not backed down in their efforts.
In this 115th Congress, these long-time advocates for the issue have introduced
significant new legislation, as well as reintroduced widely supported legislation from past
Congresses.
Cautious optimism is appropriate in evaluating the potential movement of these bills

through committee and onto the floor. Increasing understanding of the issues at hand
and their societal and fiscal impact, combined with the successes of states in
implementing similar reforms with significantly more violent overall prison populations
than in the federal prison system, are strong points to be made in advocating for the
passage of these reforms.
Fortunately, statistics will illuminate the truth on this issue, and the truth is that justice
reform and reinvestment work. It is now time for Congress to take charge, do what is
best for the American people in every regard by making reform a legislative priority. The
bills, and the necessary tools, are already available.
Introduction
Since 2007, more than 30 states have implemented justice reinvestment initiatives
focused on lowering corrections costs, reducing recidivism rates, and enhancing public
safety.2 The states that have implemented these reforms include several traditionally
Republican states like Georgia, South Carolina, and Texas.
Unfortunately, Congress has lagged behind the states. In 1986, Congress passed the
Anti-Drug Abuse Act,3 which created harsher penalties for drug crimes. These penalties
included enhanced sentences for crack cocaine. Congress further tackled drug crime in

2
Adam Gelb, 33 States Reform Criminal Justice Policies Through Justice Reinvestment, The Pew Charitable Trusts, November 16, 2016
http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/11/33-states-reform-criminal-justice-policies-through-justice-reinvestment
3
H.R. 5484, 99th Congress (1986) https://www.congress.gov/bill/99th-congress/house-bill/5484

1994 with the passage of the Violent Crime Control and Law Enforcement Act.4 These
two laws are among the avenues Congress took to enhance the war on drugs.
Congress has passed some legislation to address problems in prisons, such as the
Prison Rape Elimination Act,5 and assists states in their efforts to reduce recidivism
through the Second Chance Act.6 In 2010, Congress reduced the sentencing disparity
between crack cocaine and powdered cocaine, from 100-to-1 to 18-to-1, through the Fair
Sentencing Act.7
More recently, Congress has attempted to take action on legislation that reflects state-
based justice reinvestment initiatives. In 2014, the Senate Judiciary Committee marked
up the Smarter Sentencing Act,8 which would have reformed sentences for low-level,
nonviolent drug offenders, and the Recidivism Reduction and Public Safety Act,9 which
would have implemented evidence-based programs to reduce offenders risk of returning
to federal prison. These bills were not brought to the floor for consideration in a Senate
then controlled by Democrats, although the bills would have likely passed by a filibuster-
proof margin.
In the 114th Congress, a group of eight senators which included Judiciary Committee
Chairman Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Dick Durbin (D-Ill.), and
Sheldon Whitehouse (D-R.I.) negotiated an agreement that served as a path forward
on criminal justice reform. The agreement, the Sentencing Reform and Corrections
Act,10 was marked up in committee. The bill offered modest sentencing reforms, similar
to but not as extensive as those in the Smarter Sentencing Act, and evidenced-based
corrections reforms like those found in the Recidivism Reduction and Public Safety Act.
Certain provisions of the bill, however, found opposition.
One particular provision that sought to clarify the Armed Career Criminal Act (ACCA), for
example, was met with opposition from some Judiciary Committee members, including
Sens. Ted Cruz (R-Texas) and David Perdue (R-Ga.), both of whom were co-sponsors
of the Smarter Sentencing Act.11 The residual clause of the ACCA had been
successfully challenged in the Supreme Court12 in 2015. The court, with Justice Antonin
Scalia writing for the majority, determined that the clause was too vague and failed to
provide fair notice of what could be considered a violent felony, thus violating due
process. The changes made by Sentencing Reform and Corrections Act were seen as
an attempt to prevent the ACCA from further successful court challenges.13

4
H.R. 3355, 103rd Congress (1994) https://www.congress.gov/bill/103rd-congress/house-bill/3355
5
S. 1435, 108th Congress https://www.congress.gov/bill/108th-congress/senate-bill/1435
6
H.R.1593, 110th Congress (2007) https://www.congress.gov/bill/110th-congress/house-bill/1593
7
S. 1789, 111th Congress (2010) https://www.congress.gov/bill/111th-congress/senate-bill/1789
8
9
S.1675, 113th Congress (2013) https://www.congress.gov/bill/113th-congress/senate-bill/1675
10
11
12
SCOTUSblog, Johnson v. United States, Retrieved October 10, 2017 http://www.scotusblog.com/case-files/cases/johnson-v-united-states-3/
13
Congressional Research Service, Sentencing Reform at the End of the 114th Congress, January 24, 2017 https://fas.org/sgp/crs/misc/sentencing.pdf

With a high-profile supporter like Speaker Paul Ryan (R-Wis.), there was a similar effort
in the House of Representatives. Several sentencing and corrections reform bills were
introduced in the House during the 114th Congress, including the SAFE Justice
Reinvestment Act.14 The bills that received the most attention in the House were the
Sentencing Reform Act,15 the Corrections and Recidivism Risk Reduction Act,16 and the
Criminal Code Improvement Act.17 Each of these bills was marked up in the House
Judiciary Committee but did not come to the floor for consideration.
Although there is a vocal minority in Congress opposed to pursuing these reforms, the
votes do exist to pass legislation designed to reform federal sentencing laws and the
federal corrections system. Several criminal justice reform bills have been introduced in
the 115th Congress, the most notable of which are the Prison Reform and Redemption
Act18 and the Sentencing Reform and Corrections Act.19 These and other bills will be
examined later in this issue brief.
Some may doubt the opportunities for any significant action on justice reform in the
115th Congress. President Donald Trump ran and won on a law and order platform. He
also appointed a vocal opponent of most legislative efforts to reform the federal justice
system, Jeff Sessions, to serve as his attorney general.
Since assuming this role, Attorney General Sessions has reversed a directive20 by one
of his predecessors allowing federal prosecutors latitude on sentences sought for
nonviolent drug offenders.21 The 2013 directive that was reversed, issued by then-
Attorney General Eric Holder, is credited with lowering the number of drug offenders
subject to mandatory minimum sentences, but not by a substantial margin.22
Still, Attorney General Sessions has been open to some areas of reform. As a senator,
he co-sponsored the Fair Sentencing Act. He has also agreed that the stacking of
sentences when sentences for certain offenses are served consecutively, not
concurrently should be addressed.23
President Trump has been malleable on legislative issues. He appears willing to

negotiate when there is a possibility of positive news coverage on a legislative
achievement that he can claim. Justice reform offers this transactional president a
significant opportunity for one such legislative achievement.

14
15
16
17
18
19
20
Josh Gerstein, Sessions moves to lengthen drug sentences, Politico, May 12, 2017 http://www.politico.com/story/2017/05/12/mandatory-minimum-drug-
sentences-jeff-sessions-238295
21
Charlie Savage, Justice Dept. Seeks to Curtail Stiff Drug Sentences, The New York Times, August 12, 2013 http://www.nytimes.com/2013/08/12/us/justice-
dept-seeks-to-curtail-stiff-drug-sentences.html
22
Jacob Sullum, How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?, Reason, May 17, 2017
http://reason.com/blog/2017/05/17/how-many-drug-offenders-benefited-from-t
23
Senate Judiciary Committee, Executive Business Meeting, October 22, 2015 https://www.judiciary.senate.gov/meetings/executive-business-meeting-10-22-15

There are advocates for justice reform inside the White House, which is promising for
the potential of administration support of the issue. President Trumps son-in-law, Jared
Kushner, who serves as the director of the White House Office of American Innovation,
has been the most prominent of these advocates.
Earlier this year, Kushner met with key senators, including Judiciary Committee
Chairman Grassley and Sen. Lee, to discuss the White Houses interest on justice
reform.24 Separately, Kushner hosted a bipartisan discussion at the White House,
although the topic was limited to prisoner reentry, which would typically mean
corrections reform was the agenda.25 More recently, Kushner and his wife, Ivanka
Trump, met with a bipartisan group of senators to talk about legislation introduced in
early October.26
There are still challenges. An attorney general hostile to reform and outside voices who
either misrepresent what justice reform seeks to accomplish, ignore the successes of the
states, or prefer clickbait article headlines over facts will be obstacles to overcome. The
White House may not fully engage on these legislative efforts, as it would with other
priorities like health insurance reform or tax reform, but there are reasons to be
cautiously optimistic.
Tough on Crime Policies Eventually See Declining Effectiveness
Some politicians view justice reform skeptically. They tend to take the decline in crime
since the 1990s as proof that the tough on crime policies of the past worked.27 The best
research, however, estimates that only 25 percent of the reduction in crime in the 1990s
is attributed to lengthy prison sentences, a cornerstone of tough on crime policies.28 This
means that 75 percent of the decline in crime rates from this period were a result of
other factors, many of which are debated.
There is also the prospect of diminishing returns of incarceration. In a 2004 paper,

Steven Levitt, an economist and a co-author of Freakonomics, who once subscribed to
the theory that incarceration played a partial role in the decline of crime rates, warned of
the eventuality of diminishing returns.29
[G]iven the wide divergence in the frequency and severity of offending across
criminals, sharply declining marginal benefits of incarceration are a possibility. In
other words, the two-millionth criminal imprisoned is likely to impose a much

24
Emma Loop, White House Sends Jared Kushner To Meet With Top Senators On Improving The Criminal Justice System, BuzzFeed, March 30, 2017
https://www.buzzfeed.com/emmaloop/white-house-sends-jared-kushner-to-meet-with-top-senators
25
Kelly Cohen, Jared Kushner convenes bipartisan group to discuss prisoner re-entry, Washington Examiner, September 14, 2017
http://www.washingtonexaminer.com/jared-kushner-convenes-bipartisan-group-to-discuss-prisoner-re-entry/article/2634484
26
Michelle Smith, Ivanka Trump, Jared Kushner host dinner on criminal reform, Associated Press, October 10, 2017
https://www.washingtonpost.com/national/ivanka-trump-jared-kushner-host-dinner-on-criminal-reform/2017/10/10/cd3a88ae-ae01-11e7-9b93-
b97043e57a22_story.html
27
Pew Research Center, Gun Homicide Rate Down 49% Since 1993 Peak; Public Unaware, May 7, 2013 http://www.pewsocialtrends.org/2013/05/07/gun-
homicide-rate-down-49-since-1993-peak-public-unaware/
28
William Spelman, The Limited Importance of Prison Expansion, Cambridge University Press, 2005 https://www.cambridge.org/core/books/the-crime-drop-in-
america/the-limited-importance-of-prison-expansion/DF333F3C8D58F74E542A0E35709A8132
29
Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, Journal of Economic Perspectives,
2004 http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf

smaller crime burden on society than the first prisoner. Although the elasticity of
crime with respect to imprisonment builds in some declining marginal returns, the
actual drop off may be much greater. We do not have good evidence on this
point. These caveats suggest that further increases in imprisonment may be less
attractive than the nave cost benefit analysis would suggest.
More recently, Levitt concluded, Today, my guess is that the costs outweigh the
benefits at the margins. I think we should be shrinking the prison population by at least
one-third.
Composition of the Federal Prison Population by Offense Type
Type Percentage Inmates
Drug Offenses 46.20% 80,944
Weapons, Explosives, Arson 17.10% 29,921
Sex Offenses 9.10% 15,854
Immigration 7.80% 13,598
Extortion, Fraud, Bribery 6.40% 11,249
Burglary, Larceny, Property Offenses 4.70% 8,177
Robbery 3.80% 6,595
Homicide, Aggravated Assault, and Kidnapping Offenses 3.20% 5,588
Other 1.80% 3,091
Source: Bureau of Prisons, August 26, 2017
The most recent analysis available suggests that the United States is past the point of
diminishing returns and may actually be making communities less safe, not more.30
Summarizing his conclusions, David Roodman writes, [B]uilding and filling prisons is not
making people safer. It may even be endangering the public.31
Another concern is the overall economic costs of incarceration. Advocates for reform
often focus on the direct costs at all levels of government, which are around $80 billion
annually, but larger economic costs are significantly higher, potentially as high as $1.2
trillion.32 One source of the problem is the lack of options for offenders when they return
to their communities after their stays in prison have ended, highlighting the need to
promote effective reentry assistance.

30
David Roodman, The impacts of incarceration on crime, Open Philanthropy Project, September 2017 https://blog.givewell.org/wp-content/uploads/2017/09/The-
impacts-of-incarceration-on-crime-10.pdf
31
David Roodman, Aftereffects: In the U.S., Evidence Says Doing More Time Typically Leads to More Crime After, Open Philanthropy Project, September 22,
2017 https://www.openphilanthropy.org/blog/aftereffects-us-evidence-says-doing-more-time-typically-leads-more-crime-after
32
Neil Schoenherr, Cost of incarceration in the U.S. more than $1 trillion, The Source, September 7, 2016 https://source.wustl.edu/2016/09/cost-incarceration-u-
s-1-trillion/

Citing a study published by the National Research Council of the National Academies,33
Sen. Mike Lee (R-Utah) explained that harsh prison sentences do not improve public
safety and instead make existing problems in communities impacted by over-
incarceration worse.34
National Research Council of the National Academies issued a major study of

incarceration in the United States. One of their main conclusions is that
mandatory sentencing and excessively long sentences generally do not have a
significant deterrent effect and are ineffective unless targeted at offenders with a
very high rate of recidivism or extremely dangerous offenders. The National
Research Council concluded: [We] have reviewed the research literature on the
deterrent effect of such laws and have concluded that the evidence is insufficient
to justify the conclusion that these harsher punishments yield measurable public
safety benefits.
And recent data from the U.S. Sentencing Commission, an independent and
bipartisan Federal agency, shows that shorter sentences can accomplish the
same goals without compromising public safety. Our communities have paid a
high cost for the stiff sentences that mandatory minimums require. The National
Research Council found that high incarceration rates are concentrated in poor,
minority neighborhoods, and that the incarceration of significant numbers of
residents in these neighborhoods actually compounded existing social and
economic problems such as unemployment, poverty, family disruption, poor
health, and drug addiction.
More options on the back-end of an offender's stay can reduce his or her risk of
recidivism. States have pursued various policies to accomplish this goal, including
eliminating the box asking applicants for government jobs if they have a criminal history
(known as ban the box or fair hiring, many private employers have also implemented
this policy), record sealing and expungement, and occupational licensing reform.
Obviously, prisons serve an important role in society. But as one prominent conservative
advocate for justice reform, Pat Nolan, has said, Prisons are for people that were afraid
of, but weve filled them with people were just mad at.
Involvement of a Firearm in Federal Drug Cases

Firearm
All Drugs Powdered Crack Heroin Marijuana Meth Other
Involved?
Yes 24.1% 21.9% 32.0% 17.3% 15.2% 25.5% 17.6%
No 75.9% 78.1% 68.0% 82.7% 84.8% 74.5% 82.4%

33
National Research Council of the National Academies, The Growth of Incarceration in the United States Exploring Causes and Consequences, 2014
http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
34
Vol. 161 Cong. Rec. 45 (2015)

35
Source: Bureau of Justice Statistics
In other words, lawmakers should reserve limited resources for violent offenders and
implement diversion or rehabilitation programs for those who have addiction problems
and back-end reforms for those who are looking to turn their lives around and contribute
positively to society upon their release.
Continuing Successes of the States
When FreedomWorks focuses on justice reinvestment initiatives at the state level, we

usually discuss the efforts of three specific states: Georgia, South Carolina, and Texas.
These states are traditionally Republican and generally thought of having a strong
conservative presence in their respective legislatures. The efforts in Georgia and Texas
were covered and their successes analyzed in a 2015 FreedomWorks Foundation
publication.36
Each of these states faced the same set of problems. Prison populations were rising,
corrections costs were consuming more of state budgets, and recidivism rates were
unacceptable. Governors and state lawmakers sought a path that would reduce the
costs of incarceration, lower recidivism rates, increase accountability on those who are
incarcerated, and enhance public safety. Additionally, these states also emphasized
reserving prison bed space for violent offenders.
A Tale of Three States: Crime Rates in Georgia, South Carolina, and Texas
(Rates Per 100,000 Inhabitants)
State Year(s) Overall Violent Homicide Rape Property
1990 6,763.60 756.3 11.8 53.6 6,007.30
2000 4,751.10 504.7 8 24 4,246.40
Georgia
2010 4,041.50 402.3 5.7 21.7 3,639.20
2016 3,402.10 397.6 6.6 24.5 3,004.50
1990 6,045.20 976.6 11.2 53.7 5,068.70
2000 5,221.40 804.9 5.8 37.7 4,416.50
South Carolina
2010 4,507.60 602.2 5.7 33.4 3,905.40
2016 3,745.60 501.8 7.4 34.5 3,243.80
1990 7,826.80 761.4 14.1 51.5 7,065.30
2000 4,955.50 545.1 5.9 37.7 4,410.40
Texas
2010 4,215.20 448.4 4.9 30.2 3,766.80
2016 3,194.20 434.4 5.3 35.4 2,759.80
Texas laid the groundwork for justice reinvestment initiatives in other states. In 2007,
Texas ramped up its justice reinvestment initiative. Rather than spend $523 million on
immediate prison construction needs and another $2 billion by 2012, lawmakers, led by

35
Sam Taxy, Julie Samuels, and William Adams, Drug Offenders in Federal Prison: Estimates of Characteristics Based on Linked Data, Bureau of Justice
Statistics, October 2015 https://www.bjs.gov/content/pub/pdf/dofp12.pdf
36
Jason Pye, Federalism in Action: How Conservative States Got Smart on Crime, FreedomWorks Foundation, August 24, 2015
http://www.freedomworks.org/content/federalism-action-how-conservative-states-got-smart-crime

then-Texas House Corrections Committee Chairman Jerry Madden (R-Plano),
appropriated $241 million to implement drug courts, drug treatment programs, and in-
prison rehabilitative programs, such as education and work training, designed to reduce
recidivism.
Ten years later, these reforms are considered a success. Recidivism declined, crime
rates continued on a downward path, and lawmakers averted $3 billion in prison costs.
In fact, even while Texas incarceration rate declined by 16.6 percent, the states crime
rate fell by 33.4 percent.37 Texas is now seeing its lowest crime rates since 1967.
Georgia followed the lead of Texas. In 2011, a newly elected Republican governor,
Nathan Deal, a former member of the U.S. House of Representatives, made justice
reinvestment a part of his legislative agenda. During his inaugural address, Gov. Deal
offered a glimpse of his concerns with the state of affairs in Georgias criminal justice
system.38
For violent and repeat offenders, we will make you pay for your crimes. For other
offenders who want to change their lives, we will provide the opportunity to do so
with Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded
probation and treatment options As a State, we cannot afford to have so many
of our citizens waste their lives because of addictions. It is draining our State
Treasury and depleting our workforce.
Between 1990 and 2011, Georgia saw its prison population more than double, reaching
nearly 56,000 prisoners. The Peach State had one of the highest incarceration rates in
the United States, annual corrections costs eclipsed $1 billion, and recidivism was close
to 30 percent. If Gov. Deal and the Georgia General Assembly had done nothing to
reverse this trend, the prison population would have grown to almost 60,000 prisoners in
2016, costing taxpayers an additional $264 million.
The Special Council on Criminal Justice Reform for Georgians recommended39 that the
General Assembly adopt a package of reforms to create a safety valve exception to
mandatory minimum sentences for nonviolent drug offenders,40 establish accountability
courts, require front-end risk assessments for nonviolent drug and property offenders,
and increase the dollar threshold for felony theft. These were only a few of the reforms
recommended by the council. In 2012, the General Assembly passed the
recommendations through HB 1176.41 Reforms have passed in every subsequent
session, with little to no opposition.

37
Marc Levin, Texas should close prisons, but strengthen alternatives, Houston Chronicle, May 8, 2017
http://www.houstonchronicle.com/opinion/outlook/article/Levin-Texas-should-close-prisons-but-strengthen-11129835.php
38
Office of the Governor, Inaugural Address of Governor Nathan Deal, January 10, 2011 https://gov.georgia.gov/press-releases/2011-01-10/inaugural-address-
governor-nathan-deal
39
Special Council on Criminal Justice Reform for Georgians, Report of the Special Council on Criminal Justice Reform for Georgians, November 2011
https://dcs.georgia.gov/sites/dcs.georgia.gov/files/related_files/site_page/2011-GA-Council-Report-FINALDRAFT.pdf
40
Gregory Newburn, Mandatory Minimum Sentencing Reform Saves States Money and Reduces Crime Rates, American Legislative Exchange Council, March 29,
2016 https://www.alec.org/publication/mm-sentencing-reform/
41
HB 1176, Georgia General Assembly (2012) http://www.legis.ga.gov/Legislation/en-US/display/20112012/HB/1176

A 2016 report explained the success of Georgias justice reinvestment initiative:
Expanded use of accountability courts and other diversionary programming, improved
educational and vocational training for offenders currently incarcerated, and
implementation of the states reentry initiative have all contributed to a reduction of
Georgias recidivism rate from approximately 30 percent in 2009 to 26.4 percent last
year.
State Prison Populations by Offense Type

Violent Property Drug Public Order Other
CY 2014 52.90% 19.00% 15.70% 11.60% 0.80%
42
Source: Bureau of Justice Statistics
In 2010, the South Carolina Legislature approved the Omnibus Crime Reduction and
Sentencing Reform Act,43 which overhauled the states sentencing and corrections
policies.
Prior to this legislative effort, South Carolina had seen the size of its prison population
grow from some 9,000 inmates in 1983 to approximately 25,000 in 2009. The cost
burden on taxpayers grew significantly as lawmakers increased spending on corrections
by more than 500 percent over the same period.
The approach of the past was failing. Despite South Carolinas reliance on incarceration,
recidivism rates remained depressingly high, and the states prison population was
expected add an additional 3,200 inmates by 2014.
Lawmakers motivation in passing the Omnibus Crime Reduction and Sentencing

Reform Act was to promote efficiency in the states criminal justice system. The
legislation, which was signed into law by then-Gov. Mark Sanford, adopted a similar
approach to that taken in other conservative states, such as Texas.
The legislation stiffened sentences for violent offenders, reformed sentences for low-
level, nonviolent offenders, and took a proven approach to corrections by relying on
data-driven policies to assess the risks of an inmate becoming a repeat offender once
they re-entered society.
A June 2015 report44 noted that the average prison population in the state has declined
by nearly 10 percent. A more recent update showed a 14 percent decline.45 While the
non-violent population dropped by 30 percent, the number of violent inmates actually
increased by 6 percent. The South Carolina Department of Corrections also closed two
facilities.

42
E. Ann Carson and Elizabeth Anderson, Prisoners in 2015, Bureau of Justice Statistics, December 2016 https://www.bjs.gov/content/pub/pdf/p15.pdf
43
S 1154 South Carolina General Assembly (2010) http://www.scstatehouse.gov/sess118_2009-2010/bills/1154.htm
44
South Carolina Sentencing Reform Oversight Committee, June 2015
http://www.scstatehouse.gov/citizensinterestpage/SentencingReformOversightCommittee/Reports/StatusReportJune2015.pdf
45
The Pew Charitable Trusts, South Carolina Data Analysis Part 2: Community Supervision Trends, September 28, 2017
http://www.scstatehouse.gov/citizensinterestpage/SentencingReformOversightCommittee/SC_Data%20Drivers%20Part%20II_2017-9-27_FINAL.pdf

Although South Carolinas prison population declined, public safety in the state was
enhanced after the passage of these common sense criminal justice reforms and
taxpayers saved money, nearly $500 million through 2016.46
The states have proved that justice reform and reinvestment can and does work. The
efforts are not a cure-all for crime. Many communities will continue to be hampered by
drug crime and violent crime. But the states have gotten smarter on crime, finding their
own unique ways of dealing with the problems that communities face.
Major Justice Reform Initiatives in the 115th Congress
The perceived political atmosphere has not tamped down members of Congress from
introducing legislation that reforms federal sentences or adult and juvenile corrections.
As of early October 2017, dozens of bills dedicated to this unique set of issues has been
introduced. Additionally, congressional committees have either held markups on
introduced legislation, hearings on these subjects or plan to hold to hearings. Floor
action, however, has been limited to juvenile justice reform and a small number of bills
that increase penalties for certain offenses.
The most prominent hearing thus far took place on June 28 in the House Oversight and
Government Reform Committee.47 Chairman Trey Gowdy (R-S.C.), a former prosecutor
who has expressed interest in reforming federal sentencing laws for drug offenders,48
called the hearing shortly after taking over the chairmanship of the committee. Sens.
Cory Booker (D-N.J.) and Tim Scott (R-S.C.) were among the witnesses to testify during
the hearing.
Before the introduction of the Sentencing Reform and Corrections Act in early October,
major legislation on justice reform had been limited. After the departure of Rep. Jason
Chaffetz (R-Utah) from Congress, the Corrections and Recidivism Risk Reduction Act
was initially without a champion. Rep. Doug Collins (R-Ga.), whose home state has
implemented a justice reinvestment initiative under the leadership of Gov. Nathan Deal
(R-Ga.),49 introduced the Prison Reform and Redemption Act.50
The Prison Reform and Redemption Act would require the Attorney General to develop a
post-sentencing risk and needs assessment tool. All prisoners in the federal prison
system would be assigned recidivism reduction programming. The Bureau of Prisons
would be responsible for the implementation of the risk and needs assessments for each
prisoner and development of recidivism reduction programming.

46
The Pew Charitable Trusts, Public Safety in South Carolina, August 13, 2015 http://www.pewtrusts.org/en/research-and-analysis/fact-
sheets/2013/01/14/public-safety-in-south-carolina
47
House Committee on Oversight and Government Reform, Criminal Justice Reform and Efforts to Reduce Recidivism, June 28, 2017
https://oversight.house.gov/hearing/criminal-justice-reform-efforts-reduce-recidivism/
48
Amanda Coyne, House, Senate candidates meet in Greenville forum, The State, October 25, 2016 http://www.thestate.com/news/politics-
government/article110326917.html
49
Nathan Deal, Georgias story of redemption, The Washington Times, October 18, 2016 http://www.washingtontimes.com/news/2016/oct/18/georgias-criminal-
justice-reform-saving-lives-pres/
50

Each offender would be assessed for risk on an individual level to develop a
comprehensive plan based on his or her need and probability of reoffending. Utilizing
private public partnerships in this capacity would allow non-profit organizations,
educational institutions, and private sector entities to build relationships and community
for the most vulnerable citizens in our society.
The bill would incentivize prisoners to reduce their risk of recidivism. For every 30 days
of successfully completed recidivism reduction programming, prisoners will earn ten
days of time credits. Those prisoners who are considered to have low or no risk of
recidivism can earn an additional five days, for a total of 15 days, after two successful
risk assessment periods. Certain categories of offenders including violent offenders,
sex offenders, and terrorists would not be eligible to earn time credits.
The Prison Reform and Redemption Act would allow great access to visitation and
phone privileges, create a pilot program to address the heroin and opioid epidemic, and
prohibit the restraint of pregnant offenders unless the offender poses a serious threat.
The bill would require the Bureau of Prisons to collect statistical and demographic
information to be provided to Congress on an annual basis.
th
Major Justice Reform Legislation in the 115 Congress
(* FreedomWorks has released a letter of support for the bill)
Bill Short Title Issue Sponsor
H.R. 1809 Juvenile Justice Reform Act Juvenile Justice Rep. Jason Lewis (R-Minn.)
Juvenile Justice and Delinquency Prevention

S. 860 Juvenile Justice Sen. Chuck Grassley (R-Iowa)
Reauthorization Act
H.R. 3356 Prison Reform and Redemption Act* Corrections Rep. Doug Collins (R-Ga.)
Reclassification to Ensure Smarter and Equal

S. 1252 Reclassification Sen. Rand Paul (R-Ky.)
Treatment Act*
S. 1458 Reverse Mass Incarceration Act Sentencing Sen. Cory Booker (D-N.J.)
S. 1917 Sentencing Reform and Corrections Act* Sentencing/Corrections Sen. Chuck Grassley (R-Iowa)
S. 1902 Mens Rea Reform Act* Over-criminalization Sen. Orrin Hatch (R-Utah)
S. 1933 Smarter Sentencing Act Sentencing Sen. Mike Lee (R-Utah)
TBD SAFE Justice Act Sentencing/Corrections Rep. Bobby Scott (D-Va.)

The reintroduction of a similar corrections reform bill the Corrections Oversight,
Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System
(CORRECTIONS) Act is expected in the Senate. Sen. John Cornyn (R-Texas) will be
the lead sponsor of the bill, partnering with Sen. Whitehouse. Sens. Cornyn and
Whitehouse were the leads on the same bill in the previous Congress.51
On the sentencing side of the issue, Rep. Bobby Scott (D-Va.) and Sen. Rand Paul (R-
Ky.) introduced the Justice Safety Valve Act in the House52 and Senate,53 respectively.
Although a safety valve exception to mandatory minimum sentences for certain
nonviolent drug offenses is a key component of federal sentencing reform efforts, the
Justice Safety Valve Act would provide exceptions to all federal mandatory minimum
sentences.
Separately, Sen. Paul has introduced Reclassification to Ensure Smarter and Equal
Treatment (RESET) Act. The bill would limit the term of imprisonment and low-level,
nonviolent offenses to a maximum of one year and a maximum fine of $1,000. The bill
eliminates the 18-to-1 sentencing disparity between the sentences for crack cocaine
(cocaine base) and powdered cocaine. Additionally, the bill allows the sentencing court,
the Bureau of Prisons, or the offender to seek a reduction for any sentence amended by
it.
The RESET Act would also reinvest the budgetary savings into a new fund, the Safe
Neighborhoods and Schools Fund. Dollars deposited into this fund would be dispersed
to the Department of Education for a program to reduce truancy or support students who
are victims of crime, the Federal Crime Victim Assistance Fund, and the federal reentry
and drug court programs. Half of the dollars saved would be dedicated to reducing the
national debt.
Rep. Elijah Cummings (D-Md.) and Sen. Paul have also reintroduced the Record
Expungement Designed to Enhance Employment (REDEEM) Act in the House54 and
Senate.55 The bill allows for the sealing of federal conviction records for those convicted
of nonviolent crimes. It would also permit the automatic expungement of nonviolent
crimes committed by juvenile offenders before the age of 15 and the automatic sealing
of records for these offenses either at the age of 18 or three years after the offense,
whichever date occurs later. Elements of the REDEEM Act have been incorporated into
Title II of the Sentencing Reform and Corrections Act.

51
52
53
54
55

Another important element of these efforts is criminal intent reform. Sen. Orrin Hatch (R-
Utah) has introduced the Mens Rea Reform Act.56 FreedomWorks Foundation covered
this topic in a 2015 publication.57
The bill would require the government to meet a default intent standard of proof beyond
a reasonable doubt that the defendant acted willfully in order to obtain a conviction for
offenses that do not already contain mens rea protections. It would not affect criminal
statutes that have a strict liability standard. This effectively and necessarily defends the
liberty of honest, innocent-minded Americans.
Finally, the Sentencing Reform and Corrections Act is, as of October 2017, the main
focal point of congressional action on these issues.
With three facets front-end sentencing reform, back-end corrections reform, and
commission creation to study the criminal justice system the Sentencing Reform and
Corrections Act is a comprehensive solution to the myriad of problems marring the
federal criminal justice system.
The Sentencing Reform and Corrections Act would expand the federal safety valve
exception for mandatory minimum sentences for low-level, nonviolent drug offenses,
taking big government out of the courtroom and allowing latitude for sentencing in
accordance with the facts of a case, instead of in accordance with outdated and
overbroad federal law. This ensures that prison space and taxpayer dollars are used on
offenders who pose a threat to society, not on those given decades-long sentences for
low-level, nonviolent drug offenses.
The controversial ACCA provision that was in the iteration of the bill introduced in the
previous Congress, seeking to ensure the viability of ACCA if further challenged at the
Supreme Court, has been removed. As well-intentioned and appropriate as this
provision was,58 it was easy for opponents to misconstrue.
Similar to the Smarter Sentencing Act, the Sentencing Reform and Corrections Act
would retroactively apply the Fair Sentencing Act, which reduced the obscene
sentencing disparity between crack cocaine and powdered cocaine from 100-to-1 to 18-
to-1, to certain currently incarcerated nonviolent offenders.
The bill includes language requiring the Department of Justice to compile and make
publicly available a list of all federal criminal statutes and regulations carrying criminal
penalties, as well as any applicable criminal intent, or mens rea, standard.

56
57
Jason Pye, The Over-criminalization Epidemic: The Need for a Guilty Mind Requirement in Federal Criminal Law, FreedomWorks Foundation, September 1,
2015 http://www.freedomworks.org/content/over-criminalization-epidemic-need-guilty-mind-requirement-federal-criminal-law
58
Jason Pye and Molly Gill, Issue Brief: The Case for Reforming 924(c) and ACCA, FreedomWorks, March 9, 2016
https://www.scribd.com/document/303272099/Issue-Brief-The-Case-for-Reforming-924-c-and-ACCA

The bill includes vital corrections reforms by refocusing the use of limited federal
resources to reduce recidivism rates. Lowering the likelihood of offenders who have
completed their sentences to commit subsequent offenses is crucial to public safety, and
to the effectiveness of our federal criminal justice system. The Sentencing Reform and
Corrections Act would create individualized programs for prisoners, proven effective in
states like Georgia and Texas, in reducing recidivism and promoting successful reentry
into society.
Some of the taxpayer dollars saved by these common-sense reforms would be used to
establish a temporary National Criminal Justice Commission to ensure that the most
effective reforms continue to be implemented and resources used wisely, not carelessly
wasted.
Not only does the Sentencing Reform and Corrections Act represent a new direction for
federal criminal justice policy, requiring more accountability from offenders and
incentives to reduce their risk of recidivism, it would also save money. The version of
Sentencing Reform and Corrections Act marked up by the Senate Judiciary Committee
during the 114th Congress would have saved $722 million over ten years.59
There are several other bills with bipartisan support that have been introduced that
reform federal sentencing and corrections laws or address other issues with the criminal
justice system. These bills include the Better Drive Act60 and Renew Act.61 Although
these bills have merit, it remains to be seen whether committees of jurisdiction will move
them or whether they will be worked in as part of a larger package of bills.
Finally, Reps. Bobby Scott (D-Va.) and Jason Lewis (R-Minn.) plan to reintroduce the
SAFE Justice Act.62 Rep. Jim Sensenbrenner (R-Mich.) was sponsored the bill in the
114th Congress.63
As it was introduced in the 114th Congress, the SAFE Justice Act offered sweeping
reforms. The bill addressed over-federalization of criminal law and over-criminalization in
federal law. It focused on sentencing reforms, many of which reflected provisions in the
Smarter Sentencing Act, by creating a second safety valve exception to mandatory
minimums to include more low-level, nonviolent offenders with little to no criminal history.
It provided eligibility for resentencing under the safety valve and made the provisions of
the Fair Sentencing Act of 2010 retroactive.
The bill included provisions designed to reduce repeat offender rates by creating risk
reduction programs such as drug and mental health treatment, education, and work
training for eligible inmates and back-end reentry programs. It required post-

59
Congressional Budget Office, S. 2123, Sentencing Reform and Corrections Act of 2015, May 17, 2016 https://www.cbo.gov/publication/51588
60
61
62
Dear Colleague, Co-sponsor the SAFE Justice Act, October 18, 2017 http://dearcolleague.us/2017/10/co-sponsor-the-safe-justice-act-6/
63

sentencing risk assessments of eligible offenders and allows offenders to earn time
credits upon the completion of risk reduction programs.
FreedomWorks plans to support the SAFE Justice Act upon reintroduction.
Juvenile Justice Reform in the 115th Congress
Much like other justice reform legislation, the reauthorization of the Juvenile Justice and
Delinquency Prevention Act (JJDPA) of 1974 stalled during the 114th Congress. The
House passed their version of reauthorization64 by a large margin.65 Unfortunately, the
Senate version66 stalled because of objections raised by Sen. Tom Cotton (R-Ark.).67
Sen. Cotton successfully blocked the bill68 over the proposed phase out of valid court
orders (VCO) for juveniles who commit status offenses. These are actions such as
curfew violations, truancy, and tobacco use that are considered offenses only because
of the person's status as a minor.
The issue was given new life earlier this year in the new Congress. The House passed
the Juvenile Justice Reform Act69 by voice vote. The House version of JJDPA
reauthorization includes a phase out of the VCO exemption. The Senate version,70
however, continued to face hurdles, as Sen. Cottons blocked the bill until the phase out
of the VCO exemption was removed.71 Truancy, runaway, liquor law violations, and
curfew violations accounted for 79 percent of status offenses in 2010.72
Sen. Cotton, who infamously and strangely said that the United States has an under-
incarceration problem,73 claimed that Arkansas has one of the highest VCO use rates in
the country. The use of VCOs in Arkansas has been in decline.74 The phase out of the
VCO exemption was removed and Sen. Cotton lifted his hold on the bill, which
subsequently passed the Senate by unanimous consent.
There is still an opportunity to address the concerns about the use of VCOs in
conference between the House Education and Workforce Committee and the Senate
Judiciary Committee. Sens. Paul and Bob Casey (D-Pa.) are working to ensure that the
phase out is included in the final text. It is unclear, however, whether the phase out of
the VCO exemption will be in the final product, or when a final product will emerge.

64
65
Roll Call Vote 552, 114th Congress (2016) http://clerk.house.gov/evs/2016/roll552.xml
66
S. 1169, 114th Congress (2016) https://www.congress.gov/bill/114th-congress/senate-bill/1169/related-bills
67
Jason Dick, Tense Floor Exchange Blocks Juvenile Justice Bill, Roll Call, February 11, 2016 https://www.rollcall.com/news/policy/tense-floor-exchange-blocks-
juvenile-justice-bill
68
Max Brantley, Bipartisan juvenile justice reform bill has one problem in Congress: Tom Cotton, Arkansas Times, September 26, 2016
https://www.arktimes.com/ArkansasBlog/archives/2016/09/26/bipartisan-juvenile-justice-reform-bill-has-one-problem-in-congress-tom-cotton
69
70
71
Vidhya Ananthakrishnan, Closing a loophole that keeps kids locked up, The Hill, May 12, 2014 http://thehill.com/blogs/congress-blog/judicial/205886-closing-a-
loophole-that-keeps-kids-locked-up
72
Annie Salsich and Jennifer Trone, From Courts to Communities: The Right Response to Truancy, Running Away, and Other Status Offenses, Vera Institute of
Justice, December 2013 https://www.vera.org/publications/from-courts-to-communities-the-right-response-to-truancy-running-away-and-other-status-offenses
73
Hudson Institute, Senator Tom Cotton's Remarks on Crime and Justice in America, May 19, 2016 https://www.hudson.org/research/12505-senator-tom-cotton-
s-remarks-on-crime-and-justice-in-america
74
Arthur Rizer and Jonathan Matt, Tom Cotton Lone Holdout on Juvenile Justice Reform Bill, Real Clear Politics, July 15, 2017
https://www.realclearpolitics.com/articles/2017/07/15/tom_cotton_lone_holdout_on_juvenile_justice_reform_bill.html

The issue of juvenile justice reform is one that deserves more attention than provided in
this issue brief, particularly because, as is the case with adult corrections reform, states
have made substantial improvements in this area.
National Crime Trends
Today, crime rates in the United States are nearly at past-half-century lows. Raw data of
crime rates from 1960 to 2016 exhibits this downward trend. However, rhetoric from
President Trump, who ran on a tough-on-crime platform, as well as from his Attorney
General, Jeff Sessions, push a false narrative that runs counter to these statistics.
Fortunately, this false narrative is not difficult to debunk.
The 1980s and 1990s saw the highest crime rates in all areas of crime. Contrary to the
popular narrative of a new crime wave in America in recent years, all areas of crime
have actually seen a drastic decline since those historic highs.
The nine areas of crime violent, murder, rape, robbery, aggravated assault, property,
burglary, larceny-theft, and motor-vehicle theft all saw a massive increase in their
national rates from 1960 to 1970. Six of nine violent, rape, aggravated assault,
property, burglary, and larceny-theft saw an approximate doubling in this ten-year
period. Murder saw about a 50 percent increase, while robbery and motor vehicle theft
nearly tripled.
Violent Crime Rates: 1960-2016 Property Crime Rates: 1960-2016
800.0 6,000.0
5,000.0
600.0
4,000.0
400.0 3,000.0
2,000.0
200.0
1,000.0
0.0 0.0
1960
1964
1968
1972
1976
1980
1984
1988
1992
1996
2000
2004
2008
2012
2016
1960
1964
1968
1972
1976
1980
1984
1988
1992
1996
2000
2004
2008
2012
2016
Although all rates have not returned to early 1960s lows, most have cut almost in half
over the past two to three decades. Now, rates are comparable to those of the late
1960s and early 1970s, and some even back to or lower than early 1960s rates.
Building on these initial rapid increases in all areas of crime, crime rates continued to
climb into the 1980s and 1990s. Murder, property, and burglary reaching their past-half-
century high in 1980. Not until the outset of the 1990s did violent, rape, robbery,
aggravated assault, larceny-theft, and motor vehicle theft crime rates reach their
respective highs. While the latter sixs rates continued to climb from 1980 to 1990, the

former threes essentially plateaued at their highs, with minimal decline in a ten year
period.
National Crime Rates: 1960-2016 (Rates Per 100,000 Inhabitants)

Year Rate Year Rate
Overall Low 1960 1,887.2 Overall Low 1961 160.9
Total Overall High 1980 5,950.0 Violent Overall High 1991 758.1
Recent Low 2014 2,847.8 Recent Low 2014 361.6
Overall Low 1962 4.6 Overall Low 1962 9.4
Homicide Overall High 1980 10.2 Rape Overall High 1992 42.8
Recent Low 2014 4.4 Recent Low 2013 25.9
Aggravated
Property Overall High 1980 5,353.3 Overall High 1991 433.3
Assault
Overall Low 1961 58.3 Overall Low 1960 508.6
Robbery Overall High 1991 272.7 Burglary Overall High 1980 1,684.1
Recent Low 2014 101.3 Recent Low 2016 468.9
Motor
Larceny-
Overall High 1991 3,228.8 Vehicle Overall High 1991 658.9
Theft
Theft
After three decades of annual increases in crime rates across the board, multiple factors
have been at play in bringing these rates back down to levels seen today. Many point to
the tough on-crime policies of the 1990s as the sole cause for this. However, other
factors such as economic growth, evidence-based and preventative policing, and
community growth were and still are almost certainly at play.
Others point to rises in certain city crime statistics in the past few years as evidence of a
significant new crime wave. This is a faulty assumption, based on isolated and
fluctuating data. The broad-sweeping brush of data nationwide charting these nine areas
of crime and in total from past-half-century highs in the 1980s and 1990s until 2016
paints a dramatically different picture.
The recent lows in some areas of crime in the past few years, from 2013 through 2016,
are largely comparable and even better in many areas than early 1970s rates. Violent
and larceny-theft are roughly similar to their 1970 rates. Murder, robbery, and property
crime rates have dropped 30 to 40 percent below their 1970 rates. Burglary and motor
vehicle theft have dropped to about half of theirs, putting these two back to 1960s-
comparable rates.
Total crime rates have been decreasing steadily since the mid 1990s. Although they
have not yet returned to 1960s lows, to say that total crime is on the rise is quite simply
statistically false. Mainstream alarmist rhetoric is no reason to believe that these rates
will do anything other than continue on a downward trend.

Total Crime Rates: 1960-2016
7000
6000
5000
4000
Total Crime Rate

3000
2000
1000
0
1960
1962
1964
1966
1968
1970
1972
1974
1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012
2014
2016
All in all, the recent cries for a need to be harsher on crime, including statements by
President Trump and Attorney General Sessions, are disproven or at least seriously put
in question by even a laymans reading of the nationwide numbers. The increase in
certain area crime rates nationwide in the most recent few years are more likely, as was
the case in 2005 and 2006, explained by outbreaks of crime in a few large cities, and not
by a larger national problem.
Civil Asset Forfeiture Reform
Civil asset forfeiture is the process through which law enforcement can seize property
suspected of being connected to criminal activity. While law enforcement insists the
forfeiture is a means to go after the profits of illicit activity, including drug trade, there are
many examples of misguided law enforcement permanently seizing the property of
innocent people.
Reform of federal civil asset forfeiture laws should circulate around due process and
private property rights protections. There is need for reform at the federal level,
beginning with shifting the burden of proof to the government and increasing the
evidentiary standard. The presumption of innocence is a cornerstone of American
values. The Fifth Amendment of the Constitution states, [N]o person may be deprived of
life, liberty, or property, without due process of law. This constitutional safeguard is
thrown out the window in civil forfeiture cases.
In federal civil asset forfeiture cases, American citizens are currently assumed guilty and
are then forced to prove their innocence. This leads into the need for a requirement of

conviction as well. Property is taken from individuals based on a mere assumption.
While not the perfect solution, increasing the evidentiary standard to clear and
convincing would be a positive step.
Congress has tackled civil asset forfeiture reform in the past. In 2000, Congress passed
the Civil Asset Forfeiture Act,75 introduced by then-House Judiciary Committee
Chairman Henry Hyde (R-Ill.). Chairman Hyde was a critic of forfeiture, and even wrote a
book about the problems with the practice.76
The Civil Asset Forfeiture Reform Act, generally known as CAFRA, was meant to
address the abuses of forfeiture that had received attention in the media. Originally, the
bill had increased the evidentiary standard to subject property to forfeiture to clear and
convincing. Unfortunately, the language was watered down as it worked through the
legislative process, and the stronger evidentiary standard was scrapped.
Chairman Hyde said, This bill is one we can all be proud of. It returns civil asset
forfeiture to the ranks of respected law enforcement tools that can be used without risk
to the civil liberties and property rights of American citizens. We are all better off that this
is so.77
Unfortunately, the Civil Asset Forfeiture Reform Act has not been as protective as
Chairman Hyde hoped. Former Rep. Bob Barr (R-Ga.) noted, The first year following
CAFRAs passage did witness a significant drop in the value of assets seized by the
federal government from nearly $313 million in 2000 to just under $200 million in
2001. As ever, Uncle Sam has moved aggressively to make up that difference in recent
years; raking in more than $1.0 billion in forfeited civil assets in 2013 alone.78
Indeed, investigative reports have shown that forfeiture has been used to take cash and
property from people who are never charged with a crime,79 highlighting stories of those
who have their property seized, temporarily and permanently, and have paid a heavy
price in their efforts to get it back. In 2014, the total value of permanently seized
property, roughly $5 billion, surpassed the losses from burglaries, around $3.5 billion.80
States have recognized the abuses of civil asset forfeiture, and several have passed
legislative remedies.81 Some have taken it a step further by limiting the use of equitable
sharing by state and local law enforcement.82

75
76
Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure?, Cato Institute, June 7, 1995
https://www.amazon.com/Forfeiting-Our-Property-Rights-Seizure/dp/1882577191
77
Vol. 146 Cong. Rec. 45 (2000)
78
Bob Barr, Asset Forfeiture Reform Redux, The Huffington Post, February 15, 2015 https://www.huffingtonpost.com/bob-barr/asset-forfeiture-reform-
r_b_6333770.html
79
Michael Sallah, Robert O'Harrow Jr., Steven Rich, and Gabe Silverman, Stop and seize, The Washington Post, September 6, 2014
http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/
80
Christopher Ingram, Law enforcement took more stuff from people than burglars did last year, The Washington Post, November 23, 2015
https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/
81
Institute for Justice, Civil Forfeiture Reforms on the State Level, Retreived October 10, 2017 http://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/
82
Ibid.

Congress attempted to revisit the issue in the 114th Congress. In May 2016, the House
Judiciary Committee marked up the Deterring Undue Enforcement by Protecting Rights
of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act.83 The bill was
not brought to the House floor for a vote.
Judiciary Committee Chairman Grassley explored the issue in the Senate, hosting a
hearing84 and introducing the Senate companion of the DUE PROCESS Act.85 The bill
was not considered by the committee or on the floor of the Senate.
While President Trump offered to help a Texas sheriff destroy a state senator who
proposed requiring a criminal conviction to allow law enforcement to permanently seize
property,86 the path for forfeiture reform appears to be significantly easier for Congress.
In July, Attorney General Sessions reversed a directive issued by Attorney General Eric
Holder that placed limited restrictions on the Department of Justices Equitable Sharing
Program.87 The program has been criticized, deservedly, for facilitating circumvention of
state laws that require a higher evidentiary standard to be met to subject property to
forfeiture, or provide other protections for innocent property owners. It has also been
criticized for abuse of federal forfeiture laws.
The House of Representatives recently approved three amendments to a consolidated

appropriations bill, H.R. 3354,88 that took aim at the Attorney General Sessions reversal
of the forfeiture directive.89 One amendment, introduced by Rep. Justin Amash (R-
Mich.),90 would limit the practice of adoptive seizures in a manner consistent with the
directive issued by Attorney General Holder. The other two amendments, sponsored by
Rep. Tim Walberg (R-Mich.)91 and Rep. Jamie Raskin (D-Md.),92 would reverse Attorney
General Sessions widely criticized directive.
All three amendments were approved by voice vote. A bipartisan coalition of outside
groups, including FreedomWorks, is urging House appropriators to support these
amendments in the legislative product sent to President Trump for his signature.93 It is
important to note that the scope of these amendments is limited to appropriations. Any
real reform would need to come through actual legislation.

83
84
Senate Committee on the Judiciary, The Need to Reform Asset Forfeiture, April 15, 2015 https://www.judiciary.senate.gov/meetings/the-need-to-reform-asset-
forfeiture
85
86
Louis Nelson, Trump invites sheriff to 'destroy' Texas state lawmaker who opposes asset forfeiture, Politico, February 7, 2017
http://www.politico.com/story/2017/02/trump-sheriff-asset-forfeiture-texas-234740
87
C.J. Ciaramella, Jeff Sessions Announces Justice Department Will Increase Asset Forfeiture, Reason, July 17, 2017
http://reason.com/blog/2017/07/17/sessions-announces-justice-department-wi
88
89
Ilya Somin, House votes to curb asset forfeiture, The Washington Post, September 13, 2017 https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2017/09/13/house-votes-to-curb-asset-forfeiture/
90
H.Amdt.391, 115th Congress (2017) https://www.congress.gov/amendment/115th-congress/house-amendment/391
91
92
93
Melissa Quinn, Bipartisan coalition wants Congress to adopt amendments blocking Jeff Sessions' civil forfeiture expansion, Washington Examiner, October 10,
2017 http://www.washingtonexaminer.com/bipartisan-coalition-wants-congress-to-adopt-amendments-blocking-jeff-sessions-civil-forfeiture-
expansion/article/2637104

Removing profit incentives for authorities is another reform Congress should consider,
although there are political hurdles to overcome, as law enforcement groups oppose
taking away a revenue stream. Nevertheless, requiring profits be put in a general fund is
a way to end policing for profit. The Department of Justices Equitable Sharing Program
allows law enforcement in states with forfeiture laws that protect innocent individuals to
circumvent these laws. By working with state and local police the federal government
receives a profit from each seizure.
In addition to the amendments to H.R. 3354, there are also legislative options in the
115th Congress, Sen. Rand Paul (R-Ky.) and Rep. Tim Walberg (R-Mich.) reintroduced
the Fifth Amendment Integrity Restoration (FAIR) Act in the Senate94 and
House,95respectively.
The FAIR Act reforms federal forfeiture laws to increase the evidentiary standard to
clear and convincing evidence, the highest standard in civil cases, and restores the
presumption of innocence, placing the burden of proof on the government, where it
belongs. The bill would eliminate the Department of Justices Equitable Sharing Program
and send proceeds from forfeitures to the Treasurys general fund, removing the
perverse profit motive to seize property and subject it forfeiture.
The bill would also improve typical civil forfeiture proceedings to ensure that any person
contesting a civil forfeiture case has access to legal representation. It requires the
government to obtain more than just suspicion of an offense but also require evidence
that the owner of the property being seized had intent of criminal behavior.
Rep. Jim Sensenbrenner (R-Wis.) has also reintroduced the DUE PROCESS Act.96 If
any civil asset forfeiture reform legislation moves in the House, it is expected that the
DUE PROCESS Act will be the bill that does.
The DUE PROCESS Act would raise the standard of proof required to deprive citizens
property from a preponderance of the evidence to the highest standard in a civil court,
clear and convincing. The bill places the burden of proof on the federal government,
strengthens protections for claimants by requiring a right to counsel in civil asset
forfeiture cases, makes it easier for the recovery of legal fees when the property owner
prevails in court, and increases accountability and transparency by requiring a yearly
audit.
In addition to these changes, the new iteration of the DUE PROCESS Act has a new
provision addressing situations where animals are seized in federal animal fighting
cases by the government. This update would help expedite the disposition and
rehabilitation process of these abused animals. Furthermore, it would place the burden
of cost on the parties causing actual harm instead of on animal shelters and taxpayers.

94
95
96
H.R. 1795, 115th Congress https://www.congress.gov/bill/115th-congress/house-bill/1795

The drawback to the DUE PROCESS Act is that it does not address equitable sharing. It
is likely that such an amendment will be offered, although it is unclear that the House
Rules Committee would allow it to be considered from the floor.

About the Authors
Jason Pye is the vice president of legislative affairs for FreedomWorks. He can be
reached at jpye@freedomworks.org.
Christina Herrin is the legislative outreach manager for FreedomWorks. She can be
reached at cherrin@freedomworks.org.
Sarah Anderson is the policy intern for FreedomWorks.
The mission of FreedomWorks is to build, educate, and mobilize the largest network of
activists advocating the principles of smaller government, lower taxes, free markets,
personal liberty, and the rule of law. Find out more at FreedomWorks.org.
Appendix
Crime Rates: 1960-2016 Per 100,000 Inhabitants
Motor
Aggravated Larceny- vehicle
Year Violent Murder Rape Robbery Assault Property Burglary Theft theft
1960 160.9 5.1 9.6 60.1 86.1 1,726.3 508.6 1,034.7 183.0
1961 158.1 4.8 9.4 58.3 85.7 1,747.9 518.9 1,045.4 183.6
1962 162.3 4.6 9.4 59.7 88.6 1,857.5 535.2 1,124.8 197.4
1963 168.2 4.6 9.4 61.8 92.4 2,012.1 576.4 1,219.1 216.6
1964 190.6 4.9 11.2 68.2 106.2 2,197.5 634.7 1,315.5 247.4
1965 200.2 5.1 12.1 71.7 111.3 2,248.8 662.7 1,329.3 256.8
1966 220.0 5.6 13.2 80.8 120.3 2,450.9 721.0 1,442.9 286.9
1967 253.2 6.2 14.0 102.8 130.2 2,736.5 826.6 1,575.8 334.1
1968 298.4 6.9 15.9 131.8 143.8 3,071.8 932.3 1,746.6 393.0
1969 328.7 7.3 18.5 148.4 154.5 3,351.3 984.1 1,930.9 436.2
1970 363.5 7.9 18.7 172.1 164.8 3,621.0 1,084.9 2,079.3 456.8
1971 396.0 8.6 20.5 188.0 178.8 3,768.8 1,163.5 2,145.5 459.8
1972 401.0 9.0 22.5 180.7 188.8 3,560.4 1,140.8 1,993.6 426.1
1973 417.4 9.4 24.5 183.1 200.5 3,737.0 1,222.5 2,071.9 442.6
1974 461.1 9.8 26.2 209.3 215.8 4,389.3 1,437.7 2,489.5 462.2
1975 487.8 9.6 26.3 220.8 231.1 4,810.7 1,532.1 2,804.8 473.7
1976 467.8 8.7 26.6 199.3 233.2 4,819.5 1,448.2 2,921.3 450.0
1977 475.9 8.8 29.4 190.7 247.0 4,601.7 1,419.8 2,729.9 451.9
1978 497.8 9.0 31.0 195.8 262.1 4,642.5 1,434.6 2,747.4 460.5
1979 548.9 9.8 34.7 218.4 286.0 5,016.6 1,511.9 2,999.1 505.6
1980 596.6 10.2 36.8 251.1 298.5 5,353.3 1,684.1 3,167.0 502.2
1981 594.3 9.8 36.0 258.7 289.7 5,263.8 1,649.5 3,139.7 474.7
1982 571.1 9.1 34.0 238.9 289.1 5,032.5 1,488.8 3,084.9 458.9
1983 537.7 8.3 33.7 216.5 279.2 4,637.3 1,337.7 2,869.0 430.8
1984 539.2 7.9 35.7 205.4 290.2 4,492.1 1,263.7 2,791.3 437.1
1985 556.6 8.0 37.1 208.5 302.9 4,650.5 1,287.3 2,901.2 462.0
1986 620.1 8.6 38.1 226.0 347.4 4,881.8 1,349.8 3,022.1 509.8
1987 609.7 8.3 37.4 212.7 351.3 4,940.3 1,329.6 3,081.3 529.5

1988 637.2 8.4 37.6 220.9 370.2 5,027.1 1,309.2 3,134.9 582.9
1989 663.1 8.7 38.1 233.0 383.4 5,077.9 1,276.3 3,171.3 630.4
1990 731.8 9.4 41.2 257.0 424.1 5,088.5 1,235.9 3,194.8 657.8
1991 758.1 9.8 42.3 272.7 433.3 5,139.7 1,252.0 3,228.8 658.9
1992 757.5 9.3 42.8 263.6 441.8 4,902.7 1,168.2 3,103.0 631.5
1993 746.8 9.5 41.1 255.9 440.3 4,737.7 1,099.2 3,032.4 606.1
1994 713.6 9.0 39.3 237.7 427.6 4,660.0 1,042.0 3,026.7 591.3
1995 684.5 8.2 37.1 220.9 418.3 4,591.3 987.1 3,043.8 560.4
1996 636.6 7.4 36.3 201.9 390.9 4,451.0 945.0 2,980.3 525.7
1997 611.0 6.8 35.9 186.2 382.1 4,316.3 918.8 2,891.8 505.7
1998 567.6 6.3 34.5 165.5 361.4 4,052.5 863.2 2,729.5 459.9
1999 523.0 5.7 32.8 150.1 334.3 3,743.6 770.4 2,550.7 422.5
2000 506.5 5.5 32.0 145.0 324.0 3,618.3 728.8 2,477.3 412.2
2001 504.5 5.6 31.8 148.5 318.6 3,658.1 741.8 2,485.7 430.5
2002 494.4 5.6 33.1 146.1 309.5 3,630.6 747.0 2,450.7 432.9
2003 475.8 5.7 32.3 142.5 295.4 3,591.2 741.0 2,416.5 433.7
2004 463.2 5.5 32.4 136.7 288.6 3,514.1 730.3 2,362.3 421.5
2005 469.0 5.6 31.8 140.8 290.8 3,431.5 726.9 2,287.8 416.8
2006 479.3 5.8 31.6 150.0 292.0 3,346.6 733.1 2,213.2 400.2
2007 471.8 5.7 30.6 148.3 287.2 3,276.4 726.1 2,185.4 364.9
2008 458.6 5.4 29.8 145.9 277.5 3,214.6 733.0 2,166.1 315.4
2009 431.9 5.0 29.1 133.1 264.7 3,041.3 717.7 2,064.5 259.2
2010 404.5 4.8 27.7 119.3 252.8 2,945.9 701.0 2,005.8 239.1
2011 387.1 4.7 27.0 113.9 241.5 2,905.4 701.3 1,974.1 230.0
2012 387.8 4.7 27.1 113.1 242.8 2,868.0 672.2 1,965.4 230.4
2013 369.1 4.5 25.9 109.0 229.6 2,733.6 610.5 1,901.9 221.3
2014 361.6 4.4 26.6 101.3 229.2 2,574.1 537.2 1,821.5 215.4
2015 384.6 4.9 28.4 102.2 238.1 2,500.5 494.7 1,783.6 222.2
2016 386.3 5.3 29.6 102.8 248.5 2,450.7 468.9 1,745.0 236.9

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Issue Brief l October 2017 FreedomWorks.

Simple Justice: An Overview of Justice

Over-incarceration has created a multitude of problems for American society. Public

A common misconception is that criminal justice reform is a left-wing issue, as

Proven champions of justice reform, including Senate Judiciary Committee Chairman

Cautious optimism is appropriate in evaluating the potential movement of these bills

President Trump has been malleable on legislative issues. He appears willing to

Tough on Crime Policies Eventually See Declining Effectiveness

There is also the prospect of diminishing returns of incarceration. In a 2004 paper,

Composition of the Federal Prison Population by Offense Type

Type Percentage Inmates

Drug Offenses 46.20% 80,944

Weapons, Explosives, Arson 17.10% 29,921

Sex Offenses 9.10% 15,854

Immigration 7.80% 13,598

Extortion, Fraud, Bribery 6.40% 11,249

Burglary, Larceny, Property Offenses 4.70% 8,177

Robbery 3.80% 6,595

Homicide, Aggravated Assault, and Kidnapping Offenses 3.20% 5,588

Other 1.80% 3,091

Source: Bureau of Prisons, August 26, 2017

National Research Council of the National Academies issued a major study of

Involvement of a Firearm in Federal Drug Cases

No 75.9% 78.1% 68.0% 82.7% 84.8% 74.5% 82.4%

Continuing Successes of the States

When FreedomWorks focuses on justice reinvestment initiatives at the state level, we

State Prison Populations by Offense Type

Lawmakers motivation in passing the Omnibus Crime Reduction and Sentencing

Major Justice Reform Initiatives in the 115th Congress

Bill Short Title Issue Sponsor

Juvenile Justice and Delinquency Prevention

Reclassification to Ensure Smarter and Equal

S. 1933 Smarter Sentencing Act Sentencing Sen. Mike Lee (R-Utah)

TBD SAFE Justice Act Sentencing/Corrections Rep. Bobby Scott (D-Va.)

FreedomWorks plans to support the SAFE Justice Act upon reintroduction.

Juvenile Justice Reform in the 115th Congress

National Crime Trends

Violent Crime Rates: 1960-2016 Property Crime Rates: 1960-2016

National Crime Rates: 1960-2016 (Rates Per 100,000 Inhabitants)

Total Crime Rate

Civil Asset Forfeiture Reform

The House of Representatives recently approved three amendments to a consolidated

Sarah Anderson is the policy intern for FreedomWorks.

Crime Rates: 1960-2016 Per 100,000 Inhabitants

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