The First Step Act is not the criminal justice reform we need. But it’s a start.

By Alexander Lekhtman|December 21, 2018

Trump signed into law the First Step Act, which makes modest reforms that ease the federal prison population.

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The United States has passed the first major criminal justice reform under President Donald Trump. Trump signed into law the First Step Act, which makes modest reforms that ease the federal prison population. The unlikely chain of events set in motion December 11, when Senate Majority Leader Mitch McConnell (R-KY) announced he would allow a vote on S.2795.

The Senate overwhelmingly passed the bill by 87-12 on December 18. The House of Representatives, which first introduced the bill earlier this year, then passed the legislation on December 20 before it was sent to the President’s desk for signature. The federal prison system holds about 181,000 people, or 8.6% of the total U.S. jail and prison population of 2.1 million.

Reforms in the First Step Act include:

  • Making crack cocaine sentencing reforms under the 2010 Fair Sentencing Act retroactive.
  • Expanding the ability of judges to avoid handing down mandatory minimum sentences.
  • Eliminating the mandatory life sentence in the federal “three strikes” statute.
  • Restricting the use of ‘gun stacking’ sentences for crimes involving a firearm.
  • Increasing ‘good time credits’ to slightly reduce inmates’ sentences.
  • Creating a system of ‘earned time credits’ to allow inmates to be transferred to halfway homes or home confinement; creates an controversial algorithmic system to determine how inmates can cash in these credits.
  • Prohibiting the shackling of pregnant inmates.
  • Allowing for compassionate release of the elderly and terminally ill.

The most consequential reforms are related to mandatory minimum sentences. It makes retroactive the reforms of the 2010 Fair Sentencing Act (FSA), which related to sentences for cocaine offenses. In effect, this would allow 2,600 inmates sentenced before 2010 to petition for release from a judge.

The 2010 FSA amended statutory penalties for crack cocaine possession; previously, any amount of crack cocaine carried the same penalty as one-hundred times the amount of powder cocaine, resulting in much more severe criminal sentences. FSA reduced this statutory ratio from 100:1 to 18:1 (a continuing though smaller disparity), and eliminated the five-year mandatory minimum sentence for simple crack possession.

“With crack’s prevalence in many black neighborhoods in the 1980s, the crack penalty hit African Americans much harder than white powder cocaine users,” said the Marshall Project. “That disparity has been a major example of the racial imbalance in the criminal justice system.”

The First Step Act also reforms other mandatory minimum guidelines—not to be applied retroactively. It expands the “safety valve” that federal judges can use to avoid prescribing mandatory minimum sentences. They will now be able to use this exemption not only for people convicted of nonviolent drug offenses with no prior criminal record, but also for people with limited criminal histories. This can affect up to 2,000 people each year according to the Congressional Budget Office (CBO).

Notably, the bill reduces the disastrous “three strikes” mandatory minimum sentence. First codified in federal law under the Violent Crime Control and Law Enforcement Act of 1994 signed by President Bill Clinton, this statute requires a mandatory life sentence in prison for someone who is convicted of at least three ‘serious violent felonies or drug offenses’. The First Step Act reduces this mandatory minimum from life to 25 years.

It also reduces other mandatory minimums for both felony drug and violent offenses. It notably restricts “gun stacking” sentences, a practice which can add 25 years in prison for someone convicted of two or more violent or drug trafficking charges while holding a gun. These sentences must be served consecutively (back-to-back), and include cases where a gun was not actually used, where a gun was legally owned or registered, and even if a gun was simply found in the home but not used in the crime. The First Step Act’s restrictions on this sentencing practice may save some people decades in prison.

The bill increases “good time credits” for inmates with good disciplinary records, effectively allowing them to remove a week from their sentence for each year served. It also creates “earned time credits” from vocational and rehabilitative programs that can allow inmates to be released early to a halfway house or home confinement.

A point of controversy over the bill is that it creates an algorithmic system to evaluate inmates based on their perceived level of risk, with only ‘lower-risk’ inmates allowed to cash in earned time credits. Critics of the legislation claim such a system perpetuates racial inequities in the prison system.

“Researchers have shown that risk assessment tools applied in sentencing decisions in Florida – meant to predict recidivism – were twice as likely to be wrong when evaluating Black people as White people,” said the Leadership Conference on Civil and Human Rights, representing organizations including the ACLU and NAACP. “A further recent analysis showed that risk assessment tools are as accurate as a prediction made by a random human selected over the Internet.”

The Leadership Conference supported the bill in a later statement released December 17, but noted its reservations over bill’s unequal effects on the prison populations. “[This] bill continues to exclude many federal prisoners from earning time credits and excludes many federal prisoners from being able to ‘cash in’ the credits they earn,” they said.

“The long list of exclusions in the bill sweep in, for example, those convicted of certain immigration offenses and drug offenses….Because immigration and drug offenses account for 53.3 percent of the total federal prison population, many people could be excluded from utilizing the time credits they earned after completing programming….a disproportionate number of those excluded would be people of color.”

Representatives Doug Collins (R-GA) and Hakeem Jeffries (D-NY) first introduced the bill as H.R. 5682, and on May 22, 2018 it overwhelmingly passed the House with bipartisan support of 360 votes. But from the start, the bill has faced various forms of political opposition. Representative Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, opposed the bill in the House on the grounds that it would worsen racial disparities in federal prisons.

“I cannot support legislation which fails to address the larger issue of sentencing reform, and, though this bill makes moderate improvements in areas related to our prisons, actually does more harm by cementing into our system new areas of racial biases and disadvantage that make worse a criminal justice system desperately in need of reform,” he said on the House floor.

He continued, “I also do not believe we can simply accept, as a reason not to change our sentencing laws, opposition to sentencing reform by a Trump Administration that changes its legislative positions on a near-daily basis and that has already done so much to weaken and undermine the criminal justice system.”

The political pressure to pass this bill came from a motley crew on both the political left and right. CNN host and commentator Van Jones championed the bill, calling its passage a “Christmas miracle”. President Trump’s adviser and son-in-law Jared Kushner worked to lobby conservatives in government and media, convincing the president of Fox News’s parent company News Corporation, Rupert Murdoch, to support the effort. The broader coalition behind the First Step Act also included organizations such as the American Civil Liberties Union and the Koch brothers-backed Right on Crime.

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Alexander Lekhtman

Alexander Lekhtman is an editorial fellow at Filter.