A brief commentary on the FIRST STEP Act

In all aspects of the professional world, it has become custom to avoid polarizing issues and avoid taking positions on the body politic. It is also an axiom of criminal justice – particularly advocacy of policy reforms – that it is undeniably connected to prevailing political winds. It becomes challenging to navigate topics that require clear positions; positions that are ultimately going to conflict with others. Now as it comes to the current administration, I have remained unimpressed and at times, downright appalled by the dismantling of many conventions. I have watched as Donald Trump’s Department of Justice has sought to undermine previously established federal prohibitions on the enforcement of Schedule 1 drug procedures[1] and fallen into clandestine affairs with private prison interests[2]. To say that I’m skeptical of what is to come is an understatement. But recent Congressional proposals and a nod from the President has me curious by the prospect of what is being championed as bipartisan criminal justice reform, particularly in re-entry and programs designed to reduce reoffending. The so-called Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or FIRST STEP Act[3] centers not on sentencing reform or even a reorientation of existing laws but instead on the provision of programs incentivizing the rehabilitation and reintegration of incarcerated and formerly incarcerated persons. Ignoring Congress’ self congratulatory effort on managing a bill with an aptly fitting acronym, the FIRST STEP Act could be the most major piece of reform legislation passed in several years. Despite this, it does leave something to be desired. President Trump’s seemingly warm reception to the idea makes it worth reviewing before it has the potential to become law.

The FIRST STEP Act focuses on back-end reforms, specifically the policies that impact people already incarcerated. To address overpopulated prisons and stubborn recidivism statistics, the legislation works to encourage inmate participation in vocational and education training programs that allow for early release, increase the amount of funding these in-house programs receive, and increase the amount of good time credit an inmate can receive. All this amounts to a greater number of opportunities for incarcerated persons to reduce their time behind bars and build skills that will be crucial in the success of their long-term reintegration. For those that successfully complete training, credits may be earned for to transfer to pre-release housing alternatives like confinement in halfway houses or faith-based supervision facilities. The in-house programming would provide inmates with greater access to skill-building, on-the-job training and apprenticeship-type relationships, both of which will be critical in securing stable employment upon release.

Now this all sounds wonderful at quick glance until a deeper read reveals a host of caveats not the least of which includes restrictions on the application of good time credits and the use of a dubious risk-assessment tool that is unclear in its ability to root out inherent selection biases. The major problem with the proposal is it can’t help but be casted as a red herring. While it is being promoted as a bi-partisan piece of law (regardless of the number of politicians from either aisle who publicly support it) it has cast the ire of some on the left because of its inability to aim for broader reforms, of which include major changes to sentencing law. If the effort of the bill is to reduce the pressure of local jail and state prison populations, critics so argue, sentencing reform should really be the focus. Perhaps reducing federal penalties for personal narcotic use or changing our approach to habitual offenders would be a good place to start as both would have a real impact on prison populations. I am all for increasing not only the number of vocational/rehabilitative programs and the total amount of funding those programs receive, but not if it means doing it simply for political gain and partisan victory. Some will argue that this is a “small step,” one that needs to be made to layout a clearer path to widespread reform. I would argue that we are far past that point. In fact, we are about 20 years past that point. Even decades after the start of the drug war and the shift towards deterrence-oriented prison policy began, legislators continue to ignore the empirical work of scholars and dismiss proof for “what really works.” In response to the bill’s initial introduction, Senator Tom Cotton (R) of Arkansas criticized the proposal by noting that America had an “under-incarceration problem.” Anyone privy to prison population statistics and crime trends over the last three decades can immediately sense the ridiculousness of such a proposition.

While I have no single grand solution to solve mass incarceration, Congress can certainly act by getting serious about criminal justice reform. Here serious would involve both front-end sentencing law refinements and back-end enhancements to funding for custodial and post-custodial provisions. It would also focus heavily on restoring an Obama-era policy on ending active federal enforcement of marijuana as a Schedule I narcotic, further reducing the crack-power cocaine sentencing disparity, ending habitual offender laws, and reducing sentences for all non-violent offenders. I am fully aware that many people fear that such “radical” proposals go too far, concerned that they will drive crime and put dangerous people back on the streets. I, however, will continue to defer to evidence-based, data-driven practices (SEE: previous article dated on July 27, 2018). The FIRST STEP Act is a step, but its weak and lacks skin. As the bill moves into the Senate, I hope to see it evolve into something more comprehensive and all-encompassing. But who knows what iteration it will take. In the meantime, stay tuned for developments.

1https://www.washingtonpost.com/world/national-security/sessions-is-rescinding-obama-era-directive-for-feds-to-back-off-marijuana-enforcement-in-states-with-legal-pot/2018/01/04/b1a42746-f157-11e7-b3bf-ab90a706e175_story.html?utm_term=.fc820885db1f

[2] https://www.brennancenter.org/blog/trump%E2%80%99s-first-year-has-been-private-prison-industry-best

[3] *For those interested in tracking the bill: https://www.congress.gov/bill/115th-congress/house-bill/5682/text