The First Step Act - A Pros and Cons List
The FIRST STEP Act, short for Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, or H.R.5682 is a bipartisan prison reform bill passed by the House of Representatives on May 22, 2018. The bill’s timid reach is evident in its name, indicating the bill is only the first step in reforming the federal criminal justice system, with future reform on the horizon.
The Senate companion bill is currently in the Senate Judiciary Committee. The House bill was sponsored by Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) and the Senate bill, S.2795, is sponsored by Sen. John Cornyn (R-TX) and Sen. Sheldon Whitehouse (D-RI).
The House bill had strong bipartisan support with 10 Republican cosponsors and 9 Democratic cosponsors, ultimately passing on a 360-59 vote with 134 Democrats voting in favor of it and the remainder of votes coming from Republicans.
The FIRST STEP Act is an initiative of Jared Kushner, the president’s senior advisor and son-in-law. President Trump has publicly stated that he will sign the FIRST STEP Act if Congress will pass it.
The community of criminal justice reform organizations, groups, and advocates are largely divided on whether to support or oppose the Act. The reasons for the disagreement vary between groups and organizations. A significant amount of the division is likely due to the respective organizations prioritizing and placing greater weight on different issues, reforms, and strategic considerations.
Equal Justice Under Law takes no position on the FIRST STEP Act in supporting or opposing it. We do acknowledge its strengths and weaknesses. We have developed a list of pros and cons for informational purposes to better educate our supporters and the general public.
These pros and cons are not listed in any particular order. By labeling a provision of the Act or an effect it will have as a pro or a con, we are stating that we believe that provision or effect would be beneficial or detrimental. This categorization of pros and cons have been informed foremost by our mission, organizational values, and founding principles. Additionally, the perspective and expertise of experienced and respected organizations in the criminal justice field have influenced the organization of this list. Lastly, it should be noted that the sponsors and supporters of the FIRST STEP Act publicly and willingly agree that it is an imperfect compromise and will not necessarily “get the job done” on criminal justice reform, hence the name – the FIRST STEP Act.
We have developed a list of pros and cons for informational purposes to better educate our supporters and the general public.
We do acknowledge its strengths and weaknesses.
Political support creates potential for real change
The FIRST STEP Act garnered significant bipartisan support in the House when it passed. President Trump has said that he will sign it into law if Congress will deliver it to his desk. If the Act can make it through the Senate, it will implement real reforms that will impact the lives of prisoners and their families. The last time a federal prison reform bill was passed by Congress was thirteen years ago. Unlike most legislation that gets introduced and has significant energy expended by advocates pushing Congress to act but fails to pass – this bill may have the political support to actually be implemented and create real change, despite it being incremental change.
Supporters argue that the Act could result in 4,000 prisoners being released immediately upon implementation. However, this number is debated and may be based on outdated information. Either way, immediate impact on even a few thousand prisoners would be movement in the right direction.
Potential to prompt more reforms in the criminal justice system
An optimist can view the FIRST STEP Act as an opportunity to develop bipartisan working-relationships on criminal justice issues and create momentum within Congress and within the criminal justice reform community to push for greater and more ambitious reforms. By viewing the Act as the “first step” in a series of reforms, there is the belief and indication that more steps (i.e. reforms) will come.
Furthermore, supporters argue that the Act, if passed, will send a signal to prisoners that we care about them, that prisons should be about rehabilitation, and that real progress is being made.
Significant support for rehabilitation programs in prisons
The centerpiece of the FIRST STEP Act is that it incentivizes and provides more opportunities for prisoners to participate in rehabilitative programming (i.e. recidivism reducing programs and “productive activities”). By participating in these programs, prisoners can earn “time credits” and then cash in those credits for early release from prison into a halfway house or home confinement.
This is known as “back-end” prison reform that reduces the sentences of those already incarcerated. The provisions of the Act can cut a prison sentence by up to an additional week per year.
By incentivizing prisoners to participate in the rehabilitative programs, the system creates a win-win situation where prisoners can develop the skills and training they need for a more successful reentry into their communities, they can be released from prison early, and the prison-system saves money by releasing prisoners and ideally, over the long term, reducing the recidivism rate. Lastly, society benefits because offenders are being rehabilitated and are thus better equipped to contribute to their communities and support themselves and their families and are less likely to reoffend.
The Act increases the amount of “time credits” a prisoner can earn and provides $50 million a year over five years to support more vocational/rehabilitation programs.
Improves prison life overall
The Act bans the shackling of pregnant women, during childbirth, and during postpartum recovery (with some narrows exceptions – see cons below).
The Act pushes for prisoners to be housed as close as practicable to their residence (and theoretically their families) and ideally within 500 driving miles of that residence (though the impact of this provision could be limited – see cons below).
The Act makes law the recently adopted Bureau of Prisons policy that tampons and sanitary napkins must be available free of charge for prisoners.
The Act amends the Prison Rape Elimination Act of 2003 to require auditors who monitor compliance with the national prison rape standards to be certified.
Reforms related to mental illness in the criminal justice system
The FIRST STEP Act amends the Mentally Ill Offender Treatment and Crime Reduction Act of 2004, allowing more research for alternatives to prosecution, by removing the $75,000 cap on planning grants and removing the 3% cap – replacing it with a 6% minimum – on funds used to research alternatives to prosecution, offering training and technical assistance to criminal and juvenile justice agencies, local governments, and mental health courts, among other areas related to mental illness and diversion programs.
Personalization of rehabilitative programs
The Act requires that a “Risk Assessment System” be developed and used to evaluate individual prisoner’s recidivism risk along with what recidivism-reducing programs would be best suited for the prisoner. Each prisoner will be classified as minimum, low, medium or high risk for recidivism. The risk of “violent or serious misconduct” of each prisoner is also determined. Prisoners are periodically reassessed, and their progress or regression is tracked. Their programming is meant to be continually tailored to their “specific criminogenic needs.” This greater personalization of in-prison programming should lead to greater rehabilitation for each prisoner.
Transparency and monitoring of the Risk Assessment System
The Attorney General is required to report to Congress a “summary and assessment of the types and effectiveness of the evidence-based recidivism reduction programs and productive activities in prisons” with a relatively thorough evaluation of those programs, including successes, failures, and the impact it has had on prisoners. Furthermore, the Attorney General must report “the rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates.” However, allowing the DOJ to internally monitor and evaluate its own work in implementing the Act’s provisions may pose a conflict of interest (see cons below).
Additionally, the Act requires the Bureau of Justice Statistics to collect data on the number of federal prisoners who are veterans, have been placed in solitary confinement, who are pregnant and the outcome of the pregnancies, prisoners who are a parent/guardian of a minor child, those who have achieved a GED, high school diploma, or equivalent prior to prison, and those whom English is a second language. Additionally, data must be collected on the vacancy rate for medical and healthcare staff positions and average length of vacancy at BOP facilities; number of facilities operated, at any time, without at least one clinical nurse, certified paramedic, or licensed physician on-site; the number and type of recidivism reduction partnerships entered into; any changes in cost to legal phone calls and visits; total number of violations that resulted in reductions in rewards, incentives, or time credits (categorized with demographic breakdown); and the number of prisoners enrolled in recidivism reduction programs, broken down by risk level and program and number of enrolled prisoners who completed the program.
This data, collected by the Bureau of Justice Statistics, will be extremely valuable to criminal justice reformers and allow for a strong analysis of the effect the rehabilitative programming and “Risk Assessment System” has on prisoners.
The House bill had strong bipartisan support
with 10 Republican cosponsors and 9 Democratic cosponsors, ultimately passing on a 360-59 vote with 134 Democrats voting in favor of it and the remainder of votes coming from Republicans.
Fails to address sentencing reform
The FIRST STEP Act ignores all “front-end” reform initiatives, lacking solutions to reduce the amount of people being sent to prison via arrests and prosecutions.
The Act does not reform or reduce the number of years people are sentenced for, which directly contributes to overcrowded prisons. The Act solely focuses on the “back-end” by allowing prisoners to accrue “time credits” and some can exchange those credits for early release into a halfway house or home confinement. Therefore, this Act does not resolve the problem of extremely long sentences being imposed on prisoners at the outset.
Similarly, the FIRST STEP Act does not reform, reduce or eliminate mandatory minimums. Therefore, this Act does not resolve what most advocates would argue is one of the main drivers of mass incarceration – mandatory minimums.
May not pass in the Senate
The Senate’s version of the FIRST STEP Act must first pass through the Senate Judiciary Committee before it can be voted on by the full Senate. Senator Chuck Grassley, chairman of the Judiciary Committee, has aligned himself with critics and opponents of the Act. Without support from Sen. Grassley, the bill is likely to never make it out of committee.
Furthermore, the Act is also publicly opposed by Sen. Kamala Harris (D-CA), Sen. Cory Booker (D-NJ), and Sen. Dick Durbin (D-IL) – all three are Democratic members of the Senate Judiciary Committee. Additionally, Sen. Tom Cotton (R-AR) is believed to be actively undermining support for the bill and has recently pressured the Federal Law Enforcement Officers Association to withdraw its endorsement of the FIRST STEP Act.
Although some have speculated that Sen. Grassley may combine the Act with his own sponsored bill – the Sentencing Reform and Corrections Act (SRCA) – that bill is being blocked by Senate Majority Leader Mitch McConnell because the White House does not support its sentencing reform provisions. Combining the FIRST STEP Act with the SRCA may result in the combination bill being blocked by Sen. McConnell.
Limited impact on the number of prisoners
The provisions of the Act are directed only at the federal prison system, which incarcerates about 200,000 prisoners. About 87% of all prisoners are held in state facilities and would be completely unaffected by this Act.
Undocumented immigrants and those who have committed nonviolent immigration offenses will be excluded from “cashing in” their time credits for early release.
Prisoners who are assessed to be “high risk” are excluded from cashing in their time credits for early release. High risk prisoners may continue earning credits, but they cannot exchange them for early release until they have been assessed to no longer be at a high risk for recidivism.
Prisoners serving time for certain offenses are ineligible to receive time credits under the FIRST STEP Act. These offenses are generally more severe in nature and either have an element of violence or are repeat offenses. Exactly how many prisoners this will exclude from earning time credits is unclear; however, it is likely in the tens of thousands. Critics point out that those convicted of the most serious offenses are the ones in greatest need of the rehabilitative programming and the main incentive to participate in those programs is the chance to earn time credits, which the most serious offenders are ineligible to receive.
Potential to exacerbate racial and socioeconomic disparities in the prison system
Opponents of the Act argue that the “Risk Assessment System” (to be developed by the Attorney General) will rely heavily on factors that correlate closely with socioeconomic status and race. This could create racial and class disparities in how prisoners’ risk level is assessed, and thus which prisoners can participate in rehabilitative programs and which prisoners can cash in their credits for early release.
Although the Act requires a degree of ongoing transparency and analysis of how the Risk Assessment System is impacting prisoners, critics would like to have the system independently tested and analyzed before it is implemented.
Furthermore, using immigration-related offenses to exclude prisoners from cashing in their credits will eliminate the incentive to participate in the rehabilitative programming and will ultimately have adverse consequences on a disproportionate number of people of color.
No Congressional Budget Office score
The CBO can provide Congress with a formal cost estimate that analyzes the likely effects of the FIRST STEP Act on the federal budget. Unfortunately, the Act was passed in the House before a CBO score was available. Therefore, without a CBO score, claims that the Act will save money while reducing recidivism are not backed by an independent evaluation of that claim.
Potential to facilitate more privatization of prison programming and reentry services
The Act allows for the Attorney General to develop policies for the warden of each BOP facility to enter into partnerships with private organizations to provide training, employment, and other services. Privatizing in-prison programming, halfway houses or electronic monitoring raises concerns about a lack of governmental oversight that could lead to abuse, exploitation, and the potential appearance of a quid pro quo relationship between BOP and private companies. Funding even more contracts between for-profit actors and BOP facilities may detract from the primary goal of rehabilitation because private companies have a profit-seeking and profit-maximizing motive.
Grants significant discretion to the Attorney General
The Attorney General is mandated to implement most, if not all the provisions within the Act and opponents are concerned that Attorney General Jeff Sessions (known for being anti-reform and generally “tough on crime”) will use his significant discretion and leeway to make matters worse in the prison system. For example, the Attorney General has significant discretion in developing the “Risk Assessment System,” he is in charge of monitoring and analyzing its impact on prisoners, he will develop and implement training programs for administering the Risk Assessment System, he will develop the policies governing partnerships between BOP facilities and private organizations, and he will develop guidelines for consequences if a prisoner violates any early release conditions, alongside apparent discretion and a conflict of interest in creating reports and monitoring the implementation of this Act. The extent of influence and role that the Attorney General will play in all the aforementioned actions is uncertain. No doubt the tasks will be delegated to DOJ staff, but to what extent Attorney General Sessions will play in crafting the details is not clear.
Potential loopholes in the prohibition on shackling of pregnant women
Supporters and opponents of the Act all agree on the provision that nearly eliminates the practice of shackling pregnant women, women in childbirth, or women in postpartum recovery.
The Act does not completely prohibit this practice but instead drastically narrows when restraints can be used on such women.
If a corrections officer or U.S. marshal believes that the woman is an “immediate and credible flight risk that cannot reasonably be prevented by other means” or “poses an immediate and serious threat of harm to herself or others that cannot reasonably be prevented by other means” then the woman may be restrained, but only by the “least restrictive restraints necessary” to prevent the harm or risk of escape. A healthcare professional can also make the determination that restraints are appropriate “for the medical safety of the prisoner.”
Additionally, certain types of restraints are completely. Furthermore, if a healthcare professional requests that restraints not be used or to be removed, the corrections officer “shall refrain” from using restraints. Lastly, if a corrections officer or US marshal does shackle a pregnant woman, woman in childbirth or postpartum recovery, then the officer must submit a written report describing why restraints were used, the circumstances, the type of restraints used, the length of time they were used, and the physical effect this had on the prisoner as observed or known by the officer.
Because a corrections officer or U.S. marshal has discretion in determining whether a woman is a “flight risk” or whether she poses a threat of harm, this discretion allows for the possibility of a woman still being shackled. However, the reporting requirements and complete prohibition on certain types of restraints will certainly makes such occurrences rare.
Potential loopholes in housing prisoners close to their residence
Both supporters and opponents of the bill agree that one way to reduce recidivism is by helping maintain the prisoner’s family and community ties, so the prisoner will have those supportive relationships when they are released from prison. Unfortunately, many prisoners are placed in BOP facilities that are thousands of miles from their residences, hometown, or where their families live.
The FIRST STEP Act tries to remedy this by mandating that a prisoner be placed “in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.” However, the Act allows for this placement decision to be influenced by bed availability, the prisoner’s security designation, programmatic needs, mental and medical health needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons. Furthermore, it adds that “a designation of a place of imprisonment under this subsection is not reviewable by any court.” This provision of the Act appears to be more of a suggestion to the BOP and less of a requirement. A prisoner cannot ask a court to review their placement and any internal monitoring of placement decisions is likely to not be effective in maximizing the goals of this provision.
Not enough funding to accomplish goals
Critics of the Act argue that the $50 million each year for the next five years, provided for in the Act, is not enough to successfully implement the provisions of the Act or accomplish its goals. Therefore, without sufficient funding, the Act may prove to be full of empty promises. Opponents point to waitlists for already existing in-prison programs and insist that the funding provided for in the Act is not enough to provide meaningful programming to prisoners.
Furthermore, some opponents argue that the funding may not even be appropriated (i.e. authorized and set aside) by Congress and therefore there is little guarantee that any amount of funding will be provided to support the recidivism-reducing programs that give prisoner’s time credits. In fact, they argue that Attorney General Sessions is trying to do the opposite and is cutting the BOP’s budget and reducing its staff.
The significance of each pro and con will vary depending on your values, goals, and strategy for reform. Some pros and cons seem weightier than others, but there is no agreed upon order or hierarchy of importance. This list is here for you to draw your own conclusions. We will continue to follow this legislation closely as it develops in the Senate and will update our analysis of the bill if it is significantly amended.