When Dawn Brooks recalls her time in prison, she uses a simple word: “unfathomable.” She remembers the lack of toilet paper and feminine and hygiene products. She remembers the lack of alcohol-based hand sanitizer in the midst of the COVID pandemic. She remembers having to miss meals because of her severe peanut allergy: The prison didn’t offer alternative meals or access to an EpiPen when peanut-based products were served to her dorm mates.
“When I got home, I was malnourished,” said Brooks, who served her sentence in Danbury Federal Correctional Institution in Connecticut. “We need a total overhaul in how we view prisons, period, or how people are housed.”
Brooks was released June 4, 2020 — 18 months into her 48-month sentence for a wire fraud conviction. She was among the 41,000 incarcerated people who have been transferred to home confinement under the CARES Act of 2020, allowing most to complete their sentences outside of prison cells. The act, part of the $2 trillion COVID stimulus bill signed by then President Donald Trump, sought to address the plague of COVID in prisons by giving the Justice Department authority to select certain federally incarcerated people for home confinement during the pandemic.
But a year after the CARES Act passed, Senate Judiciary Committee Chairman Dick Durbin of Illinois and other lawmakers called out the director of the Federal Bureau of Prisons for not releasing more nonviolent, first-time offenders on home confinement or compassionate release amid staffing shortages and declining conditions in prisons. Other measures that allow federally incarcerated people to go home early — such as executive clemency and the First Step Act — also have not been used as often as lawmakers and advocates would like, especially during a health emergency crisis.
President Joe Biden campaigned on reforming and strengthening the criminal justice system, but critics say his administration has allowed many of those issues to fall by the wayside. This week, Biden took a significant step by commuting the sentences of 75 individuals with drug-related convictions and granting pardons to three. The move broke with a long streak of presidents who have not used their executive clemency powers during their first two years in office – the last was George H.W. Bush in 1989, when he granted nine pardons and one clemency petition.
But many of Biden’s other major commitments, such as ending the federal death penalty and incarceration for drug use alone, haven’t been fulfilled. And in Congress, other proposed prison reform bills have stalled.
A major criminal justice reform came in 2018, when Trump signed the First Step Act, which allows incarcerated individuals to submit their own petition for compassionate release. Previously, compassionate release applications could only be submitted by the director of the Bureau of Prisons and granted by a judge under certain conditions, such as declining health that cannot be maintained while incarcerated or the death of a spouse who was the sole caregiver of their child.
Between 2013 and 2017, only 6% of 5,400 applicants were granted release, according to federal data analyzed by The Marshall Project and The New York Times. After the First Step Act was signed, those numbers significantly increased. From Jan. 1, 2020, until June 30, 2021, federal courts received more than 20,491 compassionate release requests and 3,602 were granted — about 17%. Of those granted motions, 3,471 were filed by an offender and 32 by the BOP director.
Marsha King was granted early release via compassionate orders and the CARES Act on June 30, 2020 — 44 months into her 59-month sentence for aggravated identity theft and theft of government funds. She credits Trump for signing the First Step Act and wants Congress to put pressure on BOP to increase the number of people receiving compassionate release.
Trump “did a lot more for prison reform than anyone else. You got to give credit where credit’s due,” King said. “A lot of people were given a second chance and a big opportunity to be out of prison. If it wasn’t for him, think about how overcrowded and how many more deaths there probably would be because no one would have been released under the compassionate release.”
Like other advocates, King is calling for more action from the Biden administration and Congress to address conditions in prisons that have deteriorated during the pandemic. Stalled legislation in Congress also has addressed issues beyond COVID response, including improving medical care for pregnant inmates, regulating the cost of phone calls from prisons and easing the challenges of reentering society. Here are some of the prison reform bills that are awaiting action from lawmakers:
- Sen. Cory Booker and Rep. Bonnie Watson Coleman, both Democrats from New Jersey, introduced the Next Step Act in 2019. The bill aims to “make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts.” It was referred to the Senate Judiciary Committee in March 2019 and has not budged.
- When former Attorney General Bill Barr announced in 2019 the reinstatement of the federal death penalty after a 17-year hiatus, Rep. Ayanna Pressley of Massachusetts and other Democratic lawmakers introduced the Federal Death Penalty Prohibition Act. One Republican, Rep. Peter Meijer of Michigan, joined them to re-sentence death row inmates to life. The bill was reintroduced to the House in January 2021 and has been reviewed by three committees but has not been voted on. Attorney General Merrick Garland issued a moratorium on the death penalty in July 2021 pending a full investigation of the practice that includes the drugs that are used for the lethal injection.
- In March 2021, Texas Rep. Sheila Jackson Lee introduced the Federal Prison Bureau Nonviolent Offender Relief Act. The act — which has no co-sponsors — calls for the release of nonviolent offenders who are over the age of 45 and have served at least half of their sentence. It has been reviewed by three House committees.
- Illinois Sen. Tammy Duckworth received bipartisan support for the Martha Wright-Reed Just and Reasonable Communications Act of 2021, which would regulate the “predatory” cost of phone calls to and from correctional facilities. Duckworth and other lawmakers introduced this bill in 2019, and it advanced for consideration in Congress in March.
- California Rep. Maxine Waters introduced the Justice for Exonerees Act to the House in June 2021 that would increase the cost per year to compensate an exoneree from $50,000 to $70,000. The bill has support from 21 Democrats, but there has been no action on it since June 2021.
- The Justice for Incarcerated Moms Act — part of the Black Maternal Health Momnibus Act introduced in February 2021 by Durbin, Booker, and Democratic Sen. Mazie K. Hirono of Hawaii — aims to improve medical care for pregnant incarcerated women via “grant and model programs.” It also would “commission a study on the maternal health crisis within our prison system, and end the practice of shackling pregnant people.” This act was introduced to the House and was read by 17 committees but has not been put on the calendar for vote.
- Durbin and Republican Sen. Chuck Grassley of Iowa introduced the Prohibiting Punishment of Acquitted Conduct Act in March 2021. Co-sponsored by nine other lawmakers, the bill aims to “end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.” It was introduced to the Senate and placed on their legislative calendar in July 2021.
State lawmakers also have introduced legislation that would implement change to state and local correctional facilities as well as attempt to improve conditions for incarcerated people.
- Louisiana House Rep. Larry Selders proposed two bills this year to improve the health care system within his state’s prisons by creating a medical advisory council and eliminating co-pays for incarcerated people.
- Lawmakers in Ohio introduced a more than 1,500-page bill during the 2021-2022 general assembly regular session to revamp the state’s entire criminal justice system. Some of those provisions include incentives for incarcerated people to reduce their sentences and give the prison system authority over judges and prosecutors to offer early release to an offender.
- In New York state, Sen. Gustavo Rivera proposed a bill last year calling for the replacement of words “inmate” or “inmates” with the words “incarcerated individual” or incarcerated individuals.