Legal Action Center (LAC) appreciates the strong bipartisan recognition in Congress and the administration that our criminal justice system needs significant reform and the passing of the First Step Act, which will reform certain sentencing and prison policies for the federal Bureau of Prisons system. However, while celebrating the First Step Act becoming law, LAC also calls on Congress to act with urgency to adopt more comprehensive reforms, from policing to sentencing, in prisons and jails and through community supervision and the reentry process, to truly strengthen families and communities.
Roberta Meyers, LAC’s Director of State Strategy and Reentry states, “We are happiest for the individuals and families who will be helped by the First Step Act. It is important that people will be able to rebuild their lives and that extremely long mandatory minimum sentences will be decreased. But more can and should be done to realize the full reach of legislation like this: First Step truly needs to represent only the first step in reforming our criminal justice system.”
There is widespread consensus that much more is needed to truly reform our inequitable criminal justice system. Additional improvements to the federal system are needed, but we also call on Congress to support meaningful reform of state and local systems where the vast majority of people in this country are incarcerated. In addition to further front-end reforms to sentencing, LAC calls for a renewed federal investment to strengthen programming including education and job services, mental health and substance use disorder (SUD) treatment services and access to medications inside federal, state and local correctional systems.
LAC is particularly supportive of the following provisions of the First Step Act that will improve federal Bureau of Prisons sentencing and prison policy:
- Expansion of the safety valve to give judges discretion to sentence below the mandatory minimum for qualified people convicted of low-level nonviolent drug offenses.
- Retroactive application of the Fair Sentencing Act (FSA) so that individuals still serving sentences under the pre-FSA 100-to-1 crack-powder sentencing disparity can petition for sentence reductions.
- Reduction of unfair two- and three-strikes mandatory minimum laws to 15 from 20 years for the second strike and to 25 years from life in prison for the third strike.
- Elimination of 924(c) “stacking” so that sentencing enhancements for repeat offenses no longer apply to conduct within the same indictment.
- Improvements to the good-time credit system so that people participating in programming (including SUD treatment, vocational training and other services and training) can earn additional credit toward earlier supervised release.
- Improved policies for incarcerated women, by prohibiting the shackling of pregnant women and requiring healthcare products be provided to incarcerated women.
- Promoting family contact by requiring that incarcerated individuals be placed within 500 driving miles of their home, and providing additional phone, video conferencing and visitation privileges.
- Expansion of compassionate release under the Second Chance Act.
- Elimination of Federal juvenile solitary confinement.
- Reauthorization of the Second Chance Act to support the reentry of people returning to the community from prison or jail.
Although we are pleased that this legislation will help a portion of the population incarcerated in federal prison, we are concerned with the ways in which it will leave too many people behind. While we support greater use of good-time credits for participation in programing, we find it problematic that this bill prohibits people who have been convicted of non-low-level offenses from earning the good-time credit. The majority of people in prison and jail will return to their communities. By only incentivizing people who are deemed to be a low and minimal risk to participate in recidivism reduction programming, individuals most in need of support and skills will be left out and less prepared to reenter the community. According to a 2018 Congressional Research Service (CRS) report, “Research on the risk principle suggests that the greatest improvements in recidivism can be made when the focus is on placing high-risk offenders in programs where they receive intensive levels of evidence-based services.”[i]
While we are pleased about decreased prison sentences, we hope that First Step’s additional supervision requirements do not lead us back to continued perpetuation of our reliance on mass incarceration due to increased violations and punishments tied to supervision. We are concerned that the proposed sentencing enhancements for certain drug offenses would only perpetuate the cycle of mass incarceration as it did for the three decades following the declaration of the War on Drugs.
In addition, while LAC appreciates Congress’s specific recognition of the need to reform our nation’s drug policies, we are concerned that First Step does not go far enough in promoting the use of evidence-based substance use disorder (SUD) care. Congress must support greater use of front-end diversion to community-based SUD and mental health care to ensure all justice-involved individuals, including those who are incarcerated, have the opportunity to receive evidence-based, clinically appropriate SUD care, including medication-assisted treatment using all three FDA-approved addiction medications.
Finally, racist institutions and processes have led us to mass incarceration. This bill does not work to address the discriminatory policies and systems that have been well documented to disproportionately harm Black and Latinx communities, and it is susceptible to perpetuating them. Many of the bill’s positive initiatives are vulnerable to bias implementation. Additionally, we are very alarmed that this bill promotes the use of risk assessment tools. These tools are controlled by algorithms which have been proven to be compromised by racial and class biases. The benefits in this bill will be withheld from individuals due to their immigration status. Excluding immigrants from these provisions is discriminatory and does nothing to advance public safety.
While passage of the First Step Act represents crucial bipartisan support for much-needed reform of our country’s criminal justice system, it is absolutely clear and essential that there is still much work to be done. LAC will closely monitor implementation of this legislation and continue to advocate for broader reform that is truly equitable and intersectional.
 Maurer M. Race to Incarcerate. New York, NY: The New Press; 2001.
[i] James, N. (2018, June 10). Risk and Needs Assessment in the Federal Prison System (Rep.). Retrieved https://fas.org/sgp/crs/misc/R44087.pdf