Reducing federal prison populations and treating prisoners more humanely has long been a priority of criminal justice reform coalitions. Now, with the FIRST STEP Act heading toward President Trump’s desk after passing Congress, reducing mass incarceration at the federal level is a distinct possibility, although celebrants should remember that there’s still much more to be done.
Reason’s C.J. Ciaramella writes:
The legislation would expand reentry and job training opportunities for federal inmates and require them to be housed within 500 miles of their families, when possible. The version passed by the Senate also added four changes to federal sentencing law that would reduce some mandatory minimum sentences, expand judges’ discretion under the so-called safety valve, and make the reductions to crack cocaine sentences under the Fair Sentencing Act of 2010 apply retroactively. The latter provision will result in reduced sentences for approximately 3,000 crack cocaine offenders in federal prison.
The bill would also federally ban the shackling of pregnant prisoners during labor. Although many states have already outlawed the cruel practice, Utah, Nebraska, Kansas, Indiana, Georgia, and South Carolina all currently allow it and will be forced to rightfully re-examine their methods if this bill passes. Only about 6 percent of all female inmates in the United States are pregnant while incarcerated––approximately 12,000 women, per the American Civil Liberties Union’s data––but this bill would end this egregious practice (on the federal level, at least) that runs wholly contrary to the ideal of ensuring dignity for mothers and babies.
The FIRST STEP Act would also expand “good time credits,” which allow inmates to earn time off their sentences by being cooperative and maintaining a clean behavioral record while incarcerated. It’s also worth noting, in all coverage of the reform efforts, that this bill only applies to a relatively small number of prisoners nationwide––as of today, there are 180,843 federal inmates. There are about 2.3 million total prisoners in the United States. So, not to completely diminish the importance of this much-needed legislation, readers should note that these changes are relevant to less than 10 percent of total prisoners.
As Zak Cheney-Rice puts it at The Intelligencer: “just a fragment of the nation’s 181,000 federal inmates would be eligible for the bill’s already-modest provisions — for example, the broader use of halfway houses and home confinement as alternatives to correctional facilities, and the availability of work and education programs inmates can enroll in to earn ‘time credits’ toward early release. The lives of the roughly 2 million prisoners locked up locally or at the state level will go unaltered.”
He’s right, but that shouldn’t dampen celebration too much. Vox estimates that the act, when implemented, will result in the release of approximately 6,000 to 7,000 prisoners, and shortening sentences and improving conditions for others.
Besides, mass incarceration and the war on drugs was created over decades. It will take time for it to be dismantled, and even then, opposition must be grappled with in good faith. Criminal justice reform advocates must, at some point, reckon with the significant number of federal and state prisoners who are not nonviolent offenders.
People on both sides of the aisle must at some point deal with the fact that weed is pretty easy to garner support for, on both legalization and on public health fronts, but that psychedelics and cocaine, for example, might be a little harder to build consensus around. Yet mandatory minimums remain in place for many drug crimes, and the more “serious” drugs often carry the harshest sentences.
So reforming penalties for some nonviolent drug offenders is within the realm of possibility (and might be here sooner than we thought), but what happens to the many people who are incarcerated for offenses that are harder to corral bipartisan support for? And what happens when the reform conversation shifts to violent offenders, with law and order mentalities rubbing up against the beliefs of those who say our criminal justice system lacks mercy and doesn’t focus enough on rehabilitation? It’s the small stuff that’s easy to gain consensus for, not the big overhaul.
Still, it’s a good week if you care about working toward a slightly more rehabilitative prison system, and if you needed a little hit of bipartisan consensus in these trying times.
The Washington Post lauds the legislation, in perhaps overly fawning words, as “a long-overdue reaction to an expensive, decades-long experiment in increasing human misery in the name of public safety.” The editorial board even charitably proclaimed, “Credit to Republicans, including President Trump, for finally shepherding a compromise reform package through the Senate.”
Twitter reactions were mixed, but mostly positive:
The FIRST STEP Act is modest in its ambitions and full of carve-outs and exceptions, but you know, I don't know if I ever thought I'd see Mitch McConnell vote to retroactively reduce the sentences of around 3,000 crack cocaine offenders.
— CJ Ciaramella (@cjciaramella) December 19, 2018
The First Step Act has been accurately described as the most significant criminal justice bill in a generation.
It will lead to safer communities and redeemed lives by giving judges more discretion to impose appropriate sentences for low-level, non-violent offenders…
— Heritage Foundation (@Heritage) December 20, 2018
… and by offering evidence-based programs in prison designed to equip inmates with some of the skills they need to become law-abiding, productive citizens upon release.
— Heritage Foundation (@Heritage) December 20, 2018
The First Step Act resembles many of Obama’s criminal justice reforms. Biggest impact is symbolic — Congress admitting mass incarceration is a problem. But tangible effect is negligible, and depends on how vague prescriptions manifest as policy. Plus, some provisions may do harm.
— Radley Balko (@radleybalko) December 19, 2018
The #FirstStepAct is neither sweeping reform nor perfect, but it is the most we were able to get in a generation. Liberals should allow themselves to celebrate this rare W in the era of Trump. And no, it doesn’t make him or his administration less racist. https://t.co/r17WC2AqDs
— Abraham Gutman (@abgutman) December 19, 2018
Stop calling the First Step Act "sweeping" or an "overhaul" please https://t.co/HWU0Vxu6GJ
— Paul Blest (@pblest) December 19, 2018
The real loser in all of this seems to be Sen. Tom Cotton, who in 2016, uttered “If anything, we have an under-incarceration problem.” The FIRST STEP Act, if signed into law, certainly won’t help with that.