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The First Step Act was Exactly that, a First Step. What Comes Next?

The Second Step Presidential Justice Forum provides candidates and those in office the opportunity to outline their plans for fixing the First Step Act
Kanya Bennett,
Former Senior Legislative Counsel,
American Civil Liberties Union
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October 25, 2019

This weekend, presidential hopefuls and our current president will flex their criminal justice reform muscle at the Second Step Presidential Justice Forum in South Carolina. Unlike past campaigns, where candidates tried to outdo each other with “tough on crime” agendas, presidential hopefuls now tout their “smart on crime” policies. Candidates vie for who has the most innovative plan for fixing the criminal justice system, with many committing to our Rights for All policy that aims to reduce incarcerations rates by 50 percent.

This one-upmanship involves those running for president acknowledging the system’s many failings and inequalities and calling out its blatant racial and wealth-based disparities. They then will describe how the system is broken, and layout plans to fix it. The First Step Act is sure to be front and center in those plans.

Whether the candidates helped usher the legislation through Congress or signed it into law, those on the center stage will tout the bipartisan law as a success and an important initial effort in reforming the criminal justice system. While this may seem like a rare bipartisan step toward reform, a hearing on the First Step Act before the House Judiciary Crime Subcommittee last week revealed that there are still many steps needed before we can declare victory.

It is evident that the First Step Act has had an impact in the nearly one year since its enactment. As Bureau of Prisons (BOP) officials testified last Thursday, 3,100 people have been sent home from prison based on the “good conduct time” provision that makes those in prison eligible for early release if they demonstrate good behavior while incarcerated. In addition, as of last week a little over 2,100 people have received sentence reductions because an earlier law — the Fair Sentencing Act (FSA) — was made retroactive by the First Step Act. The FSA significantly reduced the sentencing disparities that existed between crack cocaine and powder cocaine, and about 100 additional people have received sentence reductions because of a First Step compassionate release provision that affords these reductions to the elderly and sick.

The First Step Act’s reduction of mandatory minimum sentences for drug offenses and expansion of judicial discretion for some mandatory minimum sentences is also a step in the right direction. The act recognizes the humanity of those in prison by eliminating practices like juvenile solitary confinement and the shackling of pregnant women.

The continued and long-term impact of the First Step Act, however, will depend on the implementation of several provisions in the law.

The law requires that the Department of Justice (DOJ) create a risk and needs assessment tool to determine the number of incarcerated people eligible for early release and rehabilitative programming. In order to keep sending people home from prison, it’s critical that the DOJ does not create a tool that perpetuates the criminal justice system’s racial and gender disparities.

As Professor Melissa Hamilton explained at last Thursday’s hearing, with the tool’s current design, “African-American males are far less likely to ever earn the best incentives and rewards from the First Step Act.” Andrea James of the National Council for Incarcerated and Formerly Incarcerated Women and Girls testified that she “is skeptical that this system can be implemented in a way that fully respects the individual circumstances and background of each incarcerated person,” particularly women. The American Civil Liberties Union and coalition partners continue to caution DOJ on its current approach to the tool and as members of Congress demanded at the hearing, DOJ must make the tool both transparent and accessible.

Additionally, the BOP must provide the rehabilitative and reentry programming that the law requires. Successful participation in this programming can determine whether or not someone in prison becomes eligible for early release to a halfway house. Essentially, without that programming, no one goes home. As the ACLU and other partner organizations have called for, Congress has committed $75 million to BOP and DOJ to implement programming associated with the First Step Act. But at last Thursday’s hearing, Kathleen Hawk Sawyer, director of the Bureau of Prisons, put that number in context and said: “we’ll need $75 million more.”

John Walters of the Hudson Institute reiterated the director’s comments, saying $75 million is just a “small drop in the bucket” that amounts to only “$400 per person.” According to Walters, it would take at least four times that amount to “meet the high expectations ” set by the First Step Act. It is abundantly clear that the success of the First Step Act is contingent upon sufficient funding, and Congress and the administration cannot afford to shortchange this law.

Finally, the sentencing provisions of the First Step Act must be made retroactive. Just as we’ve seen the immediate impact of making the Fair Sentencing Act retroactive, we will see a similar effect by remedying the unjust mandatory minimum sentences of the past. In recognizing the error of its ways, Congress needs to ensure that its new law provides relief to all those impacted, not just those who were sentenced at the right time when laws were reformed. Legislation must be advanced to make the First Step Act retroactive.

As Chairwoman Karen Bass (D-Calif.) recognized at the hearing, “we are just at the beginning of a very long process.” And, as Ranking Member Guy Reschenthaler (R-Pa.) said, “if not implemented correctly, there will be no subsequent steps.” The First Step Act was exactly that — a first step. At this weekend’s forum in South Carolina, candidates and those in office must be ready to discuss the next steps in order to achieve the comprehensive criminal justice reform that they seek.

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