When a FIRST STEP is Not Enough

Posted at https://www.clasp.org/blog/when-first-step-not-enough

Recently, Congress passed the First Step Act with overwhelming bipartisan support in the House and Senate. The compromise bill is the first federal legislation in decades that attempts to address the nation’s unacceptable mass incarceration problem, while also providing critical reentry resources to support returning citizens’ access to employment, training, and support services.

Undoubtedly, the First Step Act includes incremental wins in criminal justice reform that will have an impact on real lives. And that is a good thing.

The legislation will enable the release of an estimated 6,000 to 7,000 people who are currently incarcerated in federal prisons and modestly reduce some sentences in the future. It also addresses the racially biased sentencing disparities between crack cocaine and powdered cocaine by making retroactive the 2010 crack sentencing reforms through the Fair Sentencing Act. First Step prohibits the shackling of pregnant prisoners throughout their pregnancies, including during labor and delivery, and ends juvenile solitary confinement. It broadens judicial discretion to allow judges to render sentences below the mandatory minimum for certain low-level drug offenses and requires incarcerated individuals to be placed in facilities closer to their home communities and families. First Step will also reauthorize the Second Chance Act, which supports reentry programming at the state and local level.

But when is a good thing not enough? 

CLASP supports the advocates and lawmakers who have worked in earnest on these reforms. However, First Step Act is not a full-scale criminal justice overhaul as some are suggesting. It mostly includes back-end reforms, making changes that affect people who are already incarcerated. It does not address front-end solutions — including over-policing, bail reform, and racial profiling —that funnel people of color into the justice system in the first place. CLASP fears many of its provisions could exacerbate an already unequal and racially biased criminal justice system. Among its flaws, we are particularly concerned about:

• Earned Time Credits for Early Release and Risk Assessment System: One of the centerpieces of the legislation are incentives for incarcerated individuals to participate in evidence-based programming (such as correctional education), earn “time credits” and use those to be released from prison into a halfway house or home confinement. The bill uses a risk assessment system to determine eligibility for this programming. The risk assessment system is concerning since it is unclear if the algorithms used will mitigate institutional bias or simply intensify historic racial demographic disparities. In addition, many people will be excluded from these incentives, including those who are incarcerated for felonies committed while in a criminal street gang. History and data demonstrate that young men of color are more likely to be profiled and arrested as gang members despite research showing that white youth comprise the largest percentage of adolescent gang membership. They are often implicated by law enforcement simply because someone in their family or neighborhood was in a gang, or because of wearing certain brands, logos, or styles. This exclusion alone would disproportionally cause men of color to be ineligible for earned time credits.
• Exclusion of Immigrants: Immigrants are excluded from all of the bill’s benefits based simply on immigration status. The bill maintains an immigration exclusion for illegal reentry and upholds a prohibition on the use of time credits by noncitizens if they have a final order of removal. This sets a damaging precedent that places immigrants outside the scope of those who should benefit from criminal justice reform.
• Exploitive Labor: First Step would expand inmate employment through federal prison industries. These private companies employ incarcerated people in federal prisons and pay wages far below the federal minimum wage. It would also allow the federal government to sell products produced by incarcerated workers to other corrections institutions, to public entities engaged in disaster relief, the District of Columbia, and non-profit and religious organizations. We are concerned about the expansion of prison industries because of the exploitative nature of these jobs and believe if these programs exist and are to be expanded, they should pay a fair wage.

Additionally, First Step requires the U.S Attorney General to assess how budgetary savings will result in “increased investment in law enforcement and crime prevention to combat gangs of national significance” and to “hire, train, and equip law enforcement officers and prosecutors.” The inclusion of this language is troubling and should cause advocates and criminal justice leaders to be skeptical. For example, the U.S Department of Justice (DOJ) under President Trump’s leadership has worked tirelessly to unwind key justice gains and target communities of color. CLASP’s recent Unjustice Report documents DOJ actions to attack promising police reforms, reverse progress on prosecutorial discretion and criminalize youth of color.

It did not take one step to create our unjust criminal justice system. 

CLASP calls on Congress to immediately begin next steps on comprehensive justice reform, including:

• alternatives to incarceration;
• investments in large-scale employment and postsecondary pathways to good jobs and careers;
• education reengagement strategies;
• positive school discipline policies and practices; and
• mental health and peer support services.

We also simply cannot ignore the very real threat that current DOJ policies pose to people of color, particularly youth of color. Congress must prioritize oversight and accountability into current DOJ policies, specifically the rollbacks to consent decrees, its endorsement of regressive punishment and sentencing, and divestment in effective interventions.

Our current criminal justice system is rooted in historical and structural racism and supported by policies and practices that have repeatedly targeted people of color. In order to make reparations, we must demand comprehensive solutions and investments on the front and back end and boldly reimagine justice.