President Trump announced his support for the First Step Act in the Senate November 14, urging Congress to pass a tentative criminal justice reform package developed by a bipartisan group of senators.
In what the New York Times calls “the most significant changes to the criminal justice system in a generation,” the Senate version of the bill would: lower mandatory minimum sentences for some nonviolent drug-law violations (including reducing the “three strikes” penalty from life to 25 years); provide opportunities to shorten some other excessively long sentences; prohibit shackling of pregnant prisoners; and apply retroactively the 2010 reduction in the racist sentencing disparity between crack and powder cocaine.
Senate Majority Leader Mitch McConnell has indicated he will gauge support for the bill and bring it to the floor if it’s likely to win enough votes. The bill’s support ranges from the ACLU on the left to the billionaire Koch brothers on the right. Jared Kushner is at the helm. Even law enforcement groups recently endorsed it.
Kevin Ring, president of Families Against Mandatory Minimums, which has been working with Senator Charles E. Grassley (R-Iowa) and other crafters of the bill, sees it as enormously positive. It includes, he notes, “reform of the compassionate release program for sick and dying prisoners, expanded good time credit” (for some) and other important steps.
“It marries two aspects—front-end sentencing [sending people to prison for shorter amounts of time] and back-end prison reform [offering ways for people already in prison to get out earlier], and that makes the bill really strong,” he says.
Ring isn’t surprised that Trump supports the high-profile legislation. “The bill doesn’t repeal federal mandatory minimums” says Ring. “It’s not going to end over-incarceration. But it’s significant progress and there’s been this broad bipartisan support for years.” In other words, it’s an easy PR victory for Trump if it passes.
Plus, as Dan Berger, author of Rethinking the American Prison Movement, tweeted: “Currently & formerly incarcerated people are a political constituency. Both parties tried ignoring them, but it’s now a large & militant bloc. So they want to co-opt. There’s no permanent, natural reason formerly incarcerated people will vote Dem. The Right sees an opportunity & is trying to seize it.”
As to why law enforcement has gotten on board, Ring suggests it may actually be “helpful that Donald Trump is President.” Trump sends a clear signal to law enforcement that “he’s their ally. If his administration wants to do this, he actually can give the cover for anyone who might be pegged as soft on crime. It’s his ‘Nixon goes to China’ moment.”
“Nixon was a staunch anticommunist so you couldn’t call him soft when he traveled to China,” Ring elaborates. “Trump—with his ‘American carnage’ rhetoric and saying ‘I want to execute drug dealers’—saying he wants to do this… If Obama had wanted to do this, criticism of him being soft on crime might have stopped him.”
So what’s the catch? Well, there are several—some applying to potential political abuse of the bill, and others to failings of the bill itself.
Potential for Political Abuse
Trump’s rhetoric reflected the sentiment that justice might be given to some, but only if others are sacrificed in return. “In many respects, we’re getting very much tougher on the truly bad criminals—of which, unfortunately, there are many,” he assured anyone concerned about leniency. “But we’re treating people differently for different crimes. Some people got caught up in situations that were very bad.”
In other words, Trump implicitly threatened that the First Step Act may later be used as a new excuse to create even harsher sentences for “truly bad criminals”—who can be arbitrarily determined by Trump.
Like any attempt to separate the “real bad guys” from those who just made mistakes, this promises more human rights abuses. It also perpetuates the progress-obstructing idea that cruelty and unfairness in the criminal justice system are bugs, rather than features.
Failings of the Proposed Legislation
The bill’s failure, in most cases, to apply retroactively will be devastating to many. The “biggest heartbreak” for those serving excessive sentences and their families, notes Ring, is that almost none of the sentencing provisions—except those relating to crack—are retroactive. “You can’t walk away from progress,” says Ring, “but it’s hard [for families] to watch congress repudiate the sentence their loved one is serving, but not [retroactively] fix it for them.”
The bill also simply won’t cut enough prison time. The Prison Policy Initiative states that it lays out only one way to help people serving long sentences go home: allowing people in federal prisons to accrue more “good time” and “earned time” credits. (However, the bill does also have a section about “increasing the use and transparency of Compassionate Release,” which can be applied to sick, elderly or disabled prisoners). A new Prison Policy Initiative report describes eight different ways states can help shorten extensive prison sentences, including universal parole eligibility after 15 years.
Political pressures have also led to reductions in the applicability of the bill’s promised “good-time” credits. Law enforcement rarely endorses leniency for certain groups without demanding increased harshness for others, and this time is no exception. According to the New York Times, the National Sheriffs’ Association appeared to drop some previous objections to the bill only after people accused of certain fentanyl-related crimes were blocked from eligibility for the “good-time” credits included. Fentanyl‘s prevalence means that could affect a lot of people.
A limitation of any federal criminal justice reform bill, of course, is that state policies are really what drives mass incarceration; federal jails and prisons account for less than 10 percent of the total incarcerated population. “The First Step Act is getting a lot of attention today, but there’s more that can be done in the states,” tweeted the Prison Policy Initiative.
Some on the left are also criticizing the First Step Act for more than just missed opportunities—calling it a
College & Community Fellowship (CCF), a group that assists with reentry, stated: “While CCF supports these efforts to provide immediate and short-term relief to those incarcerated, we believe that the long-term effects of the FIRST STEP Act serve only to expand the power of the carceral state.”
The group cites the bill’s “emphasis on using risk assessments, already proven to be based on racial bias.” Per the bill, risk assessments would be used in part to determine who would actually get to “earn” time against their sentence, leading to earlier release. Risk assessment tools have been shown to perpetuate racism and classism.
CCF also notes the bill’s “introduction of ‘e-incarceration’ tactics like constant digital monitoring in the community.” The bill says that when someone is placed in “pre-release custody” they will be, in general, subject to “24-hour electronic monitoring.”
In a recent op-ed for the New York Times, Michelle Alexander called electronic monitoring the “newest Jim Crow”—one “that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.” CCF concludes that while the “FIRST STEP Act provides for immediate relief to those suffering in federal facilities,” it does so “in exchange for long-term control in prisons and in our communities.”
This shouldn’t be surprising. As TruthOut Editor-in-chief Maya Schenwar tweeted: “Bipartisan prison reform” has often made a deadly system even worse” by reinforcing “structural racism,” “economic violence” and “contributing “to the normalization of a surveillance society.”
We don’t want to make the perfect the enemy of the good. The First Step Act includes some welcome reforms. But it’s hard to feel “good” about a bill that threatens to further entrench and expand the reach of our criminal “justice” system in new, ever more insidious ways.