Analyzing Ayanna Pressley’s Justice Guarantee 

    Rep. Ayanna Pressley (D-MA) just filed a non-binding resolution in the US House of Representatives calling for sweeping criminal justice reforms.

    The resolution formally supports a mix of federal reforms proposed in recent years by Congress’s progressive flank, pushing states to end certain onerous practices on the state level, and bold proposals like the decriminalization of sex work and crossborder migration.

    It’s called the Justice Guarantee, and it’s popular, according to by Data for Progress and the Justice Collaborative, two left-leaning nonprofits.

    What else is in the Justice Guarantee? The federal reform chunk is mostly on point, borrowing significantly from the Justice Is Not for Sale Act of 2017, which died in a House subcommittee but had 52 cosponsorsincluding Mike Capuano, a relatively progressive former US Representative whom Pressley defeated in 2018. Stuff like ending mandatory minimum sentencing laws and an opportunity of releaseessentially, parole eligibilityfor everyone who has served 10 or more years in federal prison is in both, though Rep. Pressley adds putting a formerly incarcerated person on the sentencing review board.

    Sadly, Rep. Pressley omitted the Justice is Not for Sale Act of 2017’s robust young adult justice section, which would have put people from 22 to 26 years of age in a special category, making them potentially eligible for treatment as a juvenile for sentencing purposes. That provision fits with the consensus in neuroscience that the human brain is in the adolescent stage until around age 25. Such a change would be hugely impactful, since perhaps most crimes are committed by people under 26, and the US Sentencing Guidelines directly discourage federal judges from decreasing sentences based on youth alone.

    This omission is particularly strange given that Pressley’s home state of Massachusetts is currently considering raising the juvenile court age to 21.

    Rep. Pressley’s vision for the states is hopeful, but there are reasons to be skeptical of its efficacy. Congress can’t force the states to get rid of the death penalty, life without parole sentences, or the transfer of kids to adult court. Its power is limited to playing with funding levers in a fashion that is  “reasonably calculated to advance the general welfare.”

    Also, when discovered, out-of-state meddling in criminal justice harshness in the Deep South also has a tendency to go poorly. Southern hyper-punitiveness toward crime is deeply ingrained in the political culture. Orlando State Attorney Aramis Ayala found this out when, spurred in part by national-level organizations, she eschewed the death penalty in her jurisdiction. State-level Republicans went ballistic, taking her first-degree murder cases away and transferring them to Lake County State Attorney Brad King, a prosecutor with a particularly draconian reputation. After her side lost its case on the extent of her prosecutorial discretion at the Florida Supreme Court, Ayala was later forced to seek the death penalty again.

    Thirty percent of people polled said they supported ending mandatory minimum sentences. Not even a majority of Democrats surveyed are in support.

    It is hard to say how popular such a sweeping reform proposal would be across the nation, but of course, politics is about more than the abstract popularity of different ideas. Data for Progress and the Justice Collaborative (the successor organization to the Fair Punishment Project, which was involved in the Orlando death penalty battle) did polling on some of the issues addressed in the Pressley resolution, but most of it is abstract, because of limits on Congress’s power.

    Where the polling is more specific, it is sometimes less hopeful than the word “popular” in the report’s title suggests. For example, 30 percent of people polled said they supported ending mandatory minimum sentences, but that drops to 17 percent when narrowed to Republicans. Not even a majority of Democrats surveyed are in support. Activists can change that, but it will take a lot of work.

    At least one incorrect news alert suggested that Rep. Pressley’s resolution included a goal of dropping the US prison population by 80 percent. Unfortunately, it contains no such concrete estimate.

    Despite its flaws, Rep. Pressley’s positive resolution shows the traction that ending mass incarceration and the drug war have gotten as ideas. Behind the scenes, she is hopefully also talking with her more moderate (and even conservative) colleagues to convince them of the importance of these efforts.

    In doing so, she might point out that, far from being truly radical, these reforms would largely bring the federal criminal justice system back to where it was before 1984the year federal parole and young adult sentencing were killed off by sneaky provisions inserted into a budget bill.

    Photo of Ayanna Pressley at the Unity Rally in 2018 via Elizabeth Warren/Flickr/Creative Commons.

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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