Are the Most Dangerous Words in Criminal Justice About to Disappear?

As an erstwhile drummer, I was drawn to the movie Whiplash, in which an abusive music instructor played by J.K. Simmons pushes his promising drum student nearly over the brink in his pursuit of perfection. At one point Simmons tells him, “There are no two words in the English language more harmful than ‘good job.’”

You may take issue with that harsh approach to behavior motivation, but when it comes to criminal justice, the two most dangerous words are undoubtedly “early release.” The fear that someone released “early” from custody will commit a violent crime is one of the biggest drivers of the restrictive policies that fueled the historic rise in American imprisonment starting in the 1970s.

But recent actions at the most senior levels of the federal justice system could go a long way toward easing that phobia by acknowledging that giving people incentives to earn their way out before the very last day of their prison sentence is an important tool for public safety.

In a June interview with Forbes, the Trump administration’s newly appointed director of the federal Bureau of Prisons, William Marshall, made clear his agency’s mission is “safely incarcerating those who are dangerous and returning others to society sooner.” He also issued a policy directive that will help many incarcerated people leave prison and rejoin their families more quickly.

“Early release” is used casually and nearly universally—by journalists and by reform advocates and opponents alike—to describe anyone who gets out of prison at anything shy of 100 percent of the maximum possible sentence. Google “early release” and click the News tab to see just how common this is.

Its potency reflects the legacy of Willie Horton, the convicted murderer who was released from a Massachusetts prison on a weekend furlough and committed a rape. This was in 1988, and Horton’s case, used against the Massachusetts governor and presidential candidate Michael Dukakis in that year’s election, became an incinerator for policies characterized as “soft on crime.”

Yet the phrase “early release” is fundamentally inaccurate and misleading. As anyone involved in the criminal justice process will tell you—victims and survivors included—all states and the federal government have laws and policies that not only permit people to earn release prior to the expiration of their sentence, they encourage it.

In fact, that’s the central thrust of the First Step Act, which Congress passed with bipartisan support and President Donald Trump signed during his first term. That landmark legislation allows people in federal prison who are considered low risk, and who complete rehabilitative programs, to earn time credits that can trim their sentence or allow them to serve the final portion in home confinement or residential reentry centers.

The point is that it matters far more to public safety that people succeed after release than whether they get out in June or July. Analysis of recidivism under the First Step Act by the Council on Criminal Justice offers evidence that it’s working. People released under the act have come back to prison 55 percent less than similarly situated people released before it took effect. The concept of earned release enjoys broad public support as well, winning large majorities in both older and more recent polls.

The state and federal system each have their own complex set of rules that determine the minimum and maximum boundaries of prison terms, and they vary tremendously. In Arkansas, people may serve as little as 17 percent of their possible maximum sentence, while in Arizona, they must serve 85 percent of the maximum before release. But whether that “release window” is large or small, judges and lawyers—and reporters—understand that the various release mechanisms mean defendants are highly unlikely to serve every day of their maximum sentence behind bars.

As such, there’s nothing “early” about the release of people who have completed certain programs, avoided disciplinary infractions, and/or convinced a parole board that they are ready to return home. Nor is there anything untoward and deceptive about it. It’s the law, and everyone knows it, including the new head of the federal prison system.

While the policy and linguistic effects of Marshall’s declarations are yet to be seen, the demise of the “early release” boogeyman can’t come soon enough. The phrase strongly implies that the system has failed to deliver what it promised. It said it was going to do one thing, but then it turned around and did another. It cheated. It endangered the public. “Early release” breeds mistrust and cynicism. It does immense damage to the credibility of the justice system, and to the government in general.

People have tried through the years to come up with an alternative. “Accelerated” and “expedited” release are among them. “Earned” release is gaining popularity but so far, nothing’s really stuck outside the community of reformers.

Finding a phrase that does stick isn’t a matter of political messaging or spin. It’s about acknowledging that when someone goes home before they max out their prison sentence, the system isn’t pulling one over on the public. It’s not whiplash. It’s functioning exactly as designed.

Adam Gelb is the president and CEO of the Council on Criminal Justice, a nonpartisan think tank and invitational membership organization that advances understanding of the criminal justice policy choices facing the nation and builds consensus for solutions that enhance safety and justice for all.

The views expressed in this article are the writer’s own.