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.