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 The Fight for the First Step Act 

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Michael Santos

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By the time this post is published, the Yale Law Journal Online will have published a series of essays from the formerly incarcerated, including mine on The Effort to Reform the Federal Criminal Justice System. In the essay, I explain how the First Step Act came to pass in the U.S. Congress and potential problems with the future of federal reform. I also sketch some normative criteria the reform community can use to analyze whether particular future federal reform bills are worth supporting (I may go into greater detail about my normative criteria in a future piece of scholarship). After spending 18 months on First Step advocacy, I learned many lessons along the way, which I share here.

As I’ve said many times before, the First Step Act is two things at once.

On one hand, it is modest reform, in that it won’t come close to ending mass incarceration in the United States or even reducing over-incarceration in the federal system. But at the same time, it is the best reform bill to come out of Congress in my lifetime. The first Step fixes some of the worst mandatory minimum sentencing provisions and focuses the Federal Bureau of Prisons (“BOP”) on rehabilitation rather than just punishment. The first Step will make our system fairer and our communities safer. Already, we are seeing people released from federal prison who were serving needlessly long sentences for crack cocaine offenses or those who are terminally ill and are now receiving compassionate release.

First Step implementation has run into some problems with good-time and funding. And it will continue to face implementation challenges moving forward because so many of the provisions rely on the BOP, a bureaucracy with systematic problems that include understaffing and underfunding. But on the whole, First Step only moves people out of federal prison and that has already begun.

I have yet to meet anyone who supported First Step say that they regret their support. The federal defense community is eager to use First Step to obtain the release of those in the federal system and to make the case to sentencing judges that even Congress has begun to move past the tough on crime era.

How did the First Step Act pass through the U.S. Congress?

In my Yale essay, I say that much of the credit belongs to reform organizations who have been working on federal reform for decades—big organizations like the ACLU, the Brennan Center, and NAACP, and smaller organizations such as FAMM, the Sentencing Project, and Prison Fellowship. It also took new groups like #cut50 pushing for reform. And I give credit to scholars like Professor Michelle Alexander, who provided the scaffolding in the case against mass incarceration.

But there were several differences in the advocacy for the First Step Act that the reform community should take note of. This was the first time that many right-of-center organizations led and pushed for reform—groups like Right on Crime, the Koch network, Freedom Works, and the American Conservative Union. Those groups led the charge in both convincing conservatives that First Step was the right policy change. But more importantly, those groups provided political cover for conservative Congressional members, which allowed those members to feel comfortable in voting for First Step. They were indispensable in moving First Step through Congress.

This was also the first time that advocacy for a federal bill gave formerly incarcerated advocates a seat at the reform table. Topeka Sam from #cut50 shared her story about the unique issues facing women in prison at a reform summit in the White House; David Safavian and Pat Nolan from the American Conservative Union made the conservative case for reform in meetings before policymakers and in the media; Amy Povah with CAN-DO Clemency continued to highlight the stories of people who had been overly sentenced; and now Matthew Charles has become the face of the First Step Act in the media and in discussions with state governors in Florida and Tennessee. Formerly incarcerated advocates are illuminating the debate on how mass incarceration has negatively impacted their lives and communities, and I’ve seen their stories move policymakers in ways that policy papers and scholarship cannot.

A fair amount of credit for the First Step goes to Jared Kushner, who, outside of the politicians who voted for the Act, was the single most important person in the fight for it. As Van Jones recently remarked about Jared:

“He never, in that whole year-long fight, never told me one thing that wasn’t true, and he never made one promise he didn’t keep, and I cannot say that about a single other person in politics in either party.”

I had a similar experience working with Jared Kushner. I hope the reform community can put aside its views of the White House on other issues and see that we have never had someone who cares this much about federal reform this close to a president. That doesn’t mean he will be able to fix all the implementation problems with First Step, and he won’t be able to push for as much as we’d all like to see. Still, he is a tremendous ally. And I know that, because of his influence, there are second and third steps coming on federal reform.

What did I learn from advocacy on the First Step Act? When it comes to federal reform, it must be bipartisan and incremental. Bipartisanship is required due to the nature of how the Senate works, where, without a sizable majority, nothing of consequence can pass. Bipartisan support is also necessary for political cover. Should someone get out of prison under First Step and commit a heinous crime, it will be difficult for any party to claim that the other is now soft on crime given that 87 members of the Senate voted for the bill. Federal reform must also be incremental, both because the votes aren’t there to pass big and bold reform and because, even if there were enough votes, I’d be concerned about the tradeoffs needed to pass more sweeping legislation.

I’ve seen a significant amount of criticism of the First Step Act by those in the reform community who think that advocates drive the policy changes in Congress, and that if advocates had just pushed harder, we could have obtained more consequential reform. I didn’t see that dynamic on Capitol Hill. The criminal justice reform lobby is not the insurance or big pharma lobby. We don’t have big dollars to throw around in persuading members to vote for our bills. Nor are there many single-issue criminal justice reform voters in America, and congressional members know it. Some seem to think the advocacy groups can drive policy in Congress. But the leadership that mattered most came from politicians, people like Representatives Doug Collins and Hakeem Jeffries in the House, who cobbled together the votes and policy reforms contained in the first version of First Step. Without their leadership in the House and some forward momentum, I do not believe First Step passes.

That being said, advocacy groups made space for congressional members to take arguments that had previously been off the wall in Congress and place them into the bill. For example, the advocacy community fought for years to expand good-time for those in federal prison, but Congress steadfastly refused to do so. That is until First Step was negotiated. The reform community also provided significant political cover for members to vote for the right policy change. Several advocates performed events and wrote op-eds back in their home states just to provide that state’s congressional members political cover to vote for First Step. That was going on in several different states at once in late November and early December.

Speaking of political cover, I now see how important it is in obtaining reform. The politics of crime pervade everything we do in the reform space, as scholars William Stuntz and John Pfaff have long noted. This is one of the reasons that everyone in the reform community should read Professor James Foreman’s Pulitzer prize-winning book Locking Up Our Own, and Professor Rachel Barkow’s forthcoming book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration.

Even if First Step is not implemented perfectly, the Act is still a success because of the people who will be released under it and because of the political cover it has given to governors and state legislators to move on reform, particularly in red states such as Florida, Tennessee, Kentucky, Missouri, and Texas, all of which are moving on state-level reforms in the wake of First Step.

The Politics of Criminal Justice Reform

In the Yale essay, I have some constructive criticisms of how partisan politics impacted the advocacy of First Step. Much of it was driven, I’m sure, due to the reform community’s larger criticisms of the Trump Administration. Given how the political right has long stood in the way of reforms, I think it was difficult for some in the reform community to see Republicans take credit for passing reforms. I get that. (I purposely registered as an independent when I took on the role of criminal justice reform advocate because my desire is to work with anyone from any party if they are committed to meaningful reform. That doesn’t mean I’m politically neutral; it just means my politics are subservient to criminal justice reform.)

But I view the small CJ reform revolution within the Republican party as real and hopefully lasting progress. And I’m thrilled that it was a Republican-led Congress that passed the First Step. For many conservative congressional members, it was the first time they had experienced passing a meaningful criminal justice reform bill, and some members are already discussing future legislative reforms. And it was fun to watch members’ faces light up with appreciation when they saw the fruits of their labor: many members met Matthew Charles, who, after he was released under the First Step, visited Capitol Hill and the White House before being highlighted by President Trump at the State of the Union address. Even if you don’t buy the political magnitude of a Republican President speaking glowingly about a man who had been sentenced to 35 years in federal prison, it was an important moment for many formerly incarcerated people, I included. (Matthew Charles is my former client and friend.) For a long time, the political left has called on the right to embrace reform, and the reform community should be celebrating the fact that many on the right now are.

I’d also push back against a common refrain I’ve heard over the years that conservative criminal justice reform advocates’ main beef with mass incarceration is the cost. During 18 months of advocacy, I never once heard any conservative advocate say they supported First Step because getting people out of prison will save money (of course, they used the financial arguments in advocacy). Public safety, fairness, and the need for second chances were the arguments I heard most frequently. Certainly, that doesn’t mean conservative advocates would go as far as liberal advocates in reforming the criminal justice system. But just because Republican and Democrat advocates don’t agree on every reform does not mean they can’t come together for most reforms.

I’m also grateful for the groups who stood for sentencing reform or nothing, even though I don’t think their stance was the reason the White House added sentencing reform to First Step. One thing I’ve learned not to do in advocacy is judge peoples’ motives. There were some who believed the left-of-center groups held out for sentencing reform because they didn’t want to give the president a bipartisan win, but I never saw any evidence of that.

I’m more optimistic than ever before that we can obtain more large-scale reforms in the U.S. Congress. Politically, we are still far away from obtaining a bill that ends all federal mandatory minimums and makes those changes retroactively applicable. Yet, with 87 Senate votes in favor of First Step, there appears to be room to keep chipping away at bad sentencing provisions if only a few at a time. I will have more to say in a forthcoming article about what should be the next round of federal legislative sentencing reforms.

I think someday we will look back on the First Step and appreciate that it was the first step in ending the tough on crime era and in making more significant reform of the federal criminal justice system.

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