I support the First Step Act. I don’t pretend that it will end mass incarceration or that it is comprehensive reform. But in a mid-term election year, First Step represents incremental reform that will lead to more people getting out of the federal prison system earlier, while alleviating the suffering for many of their families.
There are two criminal justice reform bills currently pending in Congress: the First Step Act and the Sentencing Reform and Corrections Act (SRCA). First Step addresses how to reform the federal prison system, but it does not address federal sentencing. It has bipartisan and White House support.
The SRCA address both federal sentencing issues and a few prison reform issues. It also adds some mandatory minimum sentencing provisions. But SRCA has failed to get the same level of support as First Step. While it has some bipartisan support, Senator McConnell won’t bring it to the floor for a vote because it divides Senate Republicans. This is also an election year, making it exceedingly difficult to get Republicans and moderate Democrats to vote for any sentencing provisions, especially retroactive sentencing provisions like SRCA prescribes.
The criminal justice reform groups are divided into two camps. Some groups support First Step, even though they also want comprehensive federal sentencing reform. And some groups oppose First Step, arguing that Congress should pass sentencing reform or nothing. Many of these latter groups also say that First Step is worse than nothing.
I’m firmly in the former group. But I didn’t get there overnight. In the past two weeks leading up to the vote in the House, I often voiced my disagreement with the White House and other criminal justice reform groups. I prepared three different op-eds opposing the House bill as the drafts of the bill changed. I believe in the power of good policy to transform lives and increase public safety, and I thought the initial drafts would do neither.
The latest version of First Step still has flaws. First, not enough rehabilitative policy is directed towards medium- and high-risk prisoners, meaning First Step won’t provide as much recidivism reduction as it could. Second, providing earned time that can be used by prisoners to serve time in a halfway house or home confinement is not as good an incentive as real time off. The best way to reduce recidivism and make us safer would be to provide real time off in exchange for prisoners taking meaningful rehabilitation programs. Let prisoners earn their way to freedom—a model many states have moved to. And third, there are some exclusions preventing certain groups from obtaining even earned time credits (sex offenders and those who are convicted of crimes involving death). Many criminal justice reform groups have raised these issues. This is not a knowledge problem, but a political one.
The risks assessment placed in the hands of the Attorney General further concerns me because it could lead to racial disparities in the way the bill is implemented. But, as Democrat Representative Hakeem Jeffries noted, the same risk assessment is contained in SRCA—the bill that the sentencing-or-nothing groups claim must be passed this year if prison reform is to pass.
As a law professor who thinks about policy positions from the comfy confines of a nice office at Georgetown Law, it was easy for me to withhold support. My op-eds were framed from a place of principle. This bill won’t reduce recidivism as much as it should, and people in prison should be given real time off. Then the House made several substantive and beneficial changes to the bill. People from all sides of the political spectrum who’ve worked in Congress and know its politics told me that I was being unrealistic about the politics in a mid-term election year. And I continued to have discussions with thousands of federal prisoners and their families who overwhelmingly support First Step. Ultimately, I thought supporting it was in their best interest.
I wasn’t the only one who made the same calculation. Families Against Mandatory Minimums and the CAN-DO Foundation came out in favor of First Step in the days leading up to the House Judiciary Committee vote. It is not surprising that two organizations so closely aligned and in contact with federal prisoners chose to support the bill.
Because of the substantive changes made in the weeks leading up to the vote, there is a lot to like with First Step. It gives every federal prisoner with a release date (everyone but those serving life sentences) more good time credits. And the good time credit provision is retroactive, meaning every federal prisoner with a release date will receive seven more days of good time credits for each year they’ve served. The good time credit fix will lead to over a hundred thousand prisoners being released early, and it will save the Federal Bureau of Prisons (FBOP) millions of dollars that the FBOP can use to provide meaningful rehabilitation programs.
First Step next requires the FBOP to place prisoners within 500 driving miles of their families. Many federal prisoners are placed so far away from their families that it is difficult for them to maintain family and community ties, and those ties are important. Family and community ties reduce recidivism, allow family members to more easily visit their loved one in prison, and make it easier for those incarcerated to be a parent to their children. I remember Annie (my now wife) would drive eight hours, visit with me for eight hours, and then drive eight hours home in one long and exhausting day. People shouldn’t have to do that to visit their loved ones in federal prison.
First Step also includes the GRACE Act, a provision that would force accountability on the FBOP. The GRACE Act mandates the if FBOP denies or delay compassionate release from prisoners who are elderly or terminally ill, then prisoners may appeal to federal courts. It also requires the FBOP to give notice to its staff and prisoners about when compassionate release is available and how prisoners can obtain it.
If First Step did nothing else, it would be worth passing on its own. Let me say that again: First Step would represent meaningful and incremental prison reform even if nothing else was included.
Some say that nothing is better than passage of First Step. The New York Times editorial board is just the latest example. That claim is false. Contrary to the New York Times, First Step will “live up to expectations” because the good time credits and the GRACE Act take away the Federal Bureau of Prisons’ discretion. Put differently, the Attorney General can’t block those provisions if they are signed into law.
First Step doesn’t stop there. It also forces the FBOP to create meaningful rehabilitation programming; provide prisoners with photo identification prior to leaving prison; prevents the barbaric practice of shackling women during child birth; requires greater use of home confinement; fixes how audits of prison rape incidents are conducted; provides more phone minutes and visitation to those who complete rehabilitative programming; and makes it easier for visitor mentorship in federal prison. Some, but not all, will also receive early release to home confinement or a halfway house.
As someone who served almost eleven years in federal prison, I can tell you that these changes are substantial. If you believe that maintaining community and family ties will reduce recidivism, then we ought to see some recidivism reduction from the 500-mile rule, increased phone minutes and visitation, and more volunteers and mentors going into the prison.
First Step could still be improved. I hope the risk assessment improves as the bill moves to the Senate. Yet instead of hearing discussion about how to improve First Step, many criminal justice reform groups are fighting about whether it’s better to have sentencing reform or nothing at all.
Few want federal sentencing reform more than I do. But the SRCA is not passing in a mid-term election year in a Republican-controlled Congress. Republicans have said as much. If the choice is prison reform or nothing, reform seems the obvious choice if you understand how meaningful the prison reforms have become.
I greatly respect and admire the groups advocating for the sentencing-or-nothing approach. I have friends and colleagues at those organizations and I’ve often worked with them on issues of involving criminal justice reform. But I just don’t understand how they’d choose nothing over the reforms made by First Step.
If First Step contained only the retroactively applicable good time fix, the 500-mile rule, and the GRACE Act, I’d say it is meaningful prison reform. That it contains much more makes the calculation an easy one.
First, if we are going to deny current federal prisoners and their families the significant benefits of First Step, we should hold out for meaningful sentencing reform. The SRCA is not the hill to die upon. It is not meaningful sentencing reform. To me, it represents scraps. If retroactively applied (though it won’t be), the SRCA would apply only to roughly 7,000 current prisoners out of 180,000 federal prisoners. First Step, by contrast, would affect almost all 180,000 federal prisoners and the good time provision alone will apply to every federal prisoner with a release date. First Step will affect more current federal prisoners than SRCA.
Second, the SRCA also includes several mandatory minimum provisions. Should it be up for a vote, there is no doubt that Senators like Tom Cotton would demand more as the cost of admission for it passing. If everyone pushed in unison behind First Step, Senator Cotton will have a more difficult time attempting to water down that bill.
Third, the SRCA’s sentencing reform provisions will not be applied retroactively to current federal prisoners. Anyone who thinks otherwise doesn’t understand the practical realities of Senate negotiations. In 2010 when Democrats had a majority in Congress and the Fair Sentencing Act was passed, that bill wasn’t made retroactive and it still hasn’t been. I see no way retroactivity would survive now. Many federal prisoners already understand that retroactive application will be the first thing to fall on the negotiating floor, and they’ve asked me to oppose the SRCA outright due to that fact. Because the provisions of the SRCA would be unlikely to make it through negotiation even if it were being held to a vote, the First Step Act represents the only reform that current federal prisoners and their families have a chance at.
First Step is the only bill currently in Congress that will provide any relief to current federal prisoners and their families.
Fourth, even if it were politically possible to pass comprehensive and meaningful sentencing reform, I wouldn’t want it to take place in the current political climate. The last time we had comprehensive federal sentencing reform was in 1984 and it only made things worse. The current political climate will require tradeoffs and those tradeoffs are often bad.
Fifth, I’ve heard the argument that if Congress passes prison reform this year, it will be hard to pass sentencing reform next year or in the near future. I’ve not heard any evidence for such a belief, just speculation. One could also argue that passing modest sentencing reform will make it harder to pass meaningful sentencing reform in the near future. And SRCA represents incredibly modest sentencing reform.
Sixth, incremental reform is the only real option. Until we see more cultural change around mass incarceration, reform is only going to happen gradually. Incremental reform is the only reform I’ve seen politically feasible no matter who is in the White House and controlling Congress.
Seventh, no one is saying the Senate shouldn’t add some sentencing provisions. I will continue to push for sentencing reform additions as I support First Step. It just means we shouldn’t be conditioning prison reform on SRCA being added. Or trying to kill First Step, as some groups have attempted to do.
Some groups say this bill does nothing to meaningfully end mass incarceration. True, but neither will SRCA. For that matter, the Congress could release all 180,000 federal prisoners tomorrow and we’d still have over-incarceration problem because 2 million prisoners are incarcerated by the states. And since when is that the standard?
I support the First Step Act knowing its policy flaws. I do it because the bill provides real and meaningful reform to federal prisoners and their families.
Those in opposition are missing a glaring but mostly lost point. Last Friday, many leaders of criminal justice reform community were in the White House as President Trump spoke strongly about the need for meaningful prison reform and second chances.
There were several formerly incarcerated advocates there in attendance, and I was one of them. Many of the formerly incarcerated were not there because they are conservatives. Nor were all of them natural friends or normal allies with the President. Several have fundamental disagreements over the President’s other policy decisions and remarks. They showed up to illustrate to the President the power that criminal justice reform has to unite people, even people who disagree on everything else.
We weren’t there for ourselves. We were there to support those currently suffering in federal prison.
The Federal Bureau of Prisons was bad when I left in 2008. It has gotten worse since. Current prisoners and their families are tired of waiting; and First Step shouldn’t be held hostage over a bad sentencing reform bill that will do nothing to help them.