Michael Swartz / November 30, 2018

So What Is the ‘First Step’?

The Senate can make a real difference with some significant reforms to criminal justice.

Earlier this month, we learned that a key Trump administration priority for the waning days of the 115th Congress was criminal justice reform, specifically the First Step Act passed by the House in May and amended in the Senate to include revised sentencing provisions.

First Step, however, came from a simple philosophy. You’ll often notice that a prison facility is called a “correctional institution.” This is because the ostensible goal isn’t as much to punish those who are sent there as it is to reform them into productive members of society when their sentences are complete. Unfortunately, their success rate of late hasn’t been stellar. A 2016 study of more than 24,000 federal prisoners released a decade earlier (in 2005) by the United States Sentencing Commission found that 49.3% had been re-arrested within eight years of release, and nearly one in four (24.6%) had been re-incarcerated. In addition, 41.7% had been initially imprisoned for a drug-trafficking offense. Worse yet, a 2014 Bureau of Justice Statistics study of a similar 2005 cohort of those released from state prisons found a five-year recidivism rate, based on a subsequent arrest, of 76.6%. And, again, drug offenses were the primary source of convictions at 31.4% of 2005 cases.

Effective state-level programs do exist, however, and there are incentives that can be used to lessen the severity (if not the length) of one’s sentence. But the first key reform of First Step is to get a better handle on the composition of the prison population through two methods.

One step is requiring the Department of Justice to adopt a validated risk-assessment tool that determines the likelihood of recidivism upon each prisoner’s release. The second is a needs assessment that determines the sort of help those in the correctional system need most to succeed after their sentence is up, whether through counseling, job training, or addressing a substance-abuse problem. Some may need a combination of all three, but once these assessments are complete and programming is made available, there’s a better chance at correction rather than re-conviction.

While this approach isn’t foolproof, those in lower risk-assessment categories would have a better chance of getting “earned time” credits, which, as Joe Luppino-Esposito writes at The Daily Signal, “would require the Bureau of Prisons to match inmates to programs that are designed and tested to address their specific needs, allowing minimum- and low-risk inmates who successfully participate in and complete those programs to earn time credits that they could cash in toward the end of their sentence to serve some final portion of their sentence under some form of community confinement.” That end-of-sentence time could be spent in supervised release, a halfway house, or even home confinement. Those who are higher-risk inmates won’t get the “earned time” but can get extended time for visitation or telephone calls as their incentive.

“This First Step Act recognizes the importance of following up an arrest with good correctional programming and attempts to change behavior before sending them back to the community,” said Rep. John Rutherford, a former Florida sheriff who supported the original House legislation last spring. Adds John-Michael Seibler of The Heritage Foundation, “The [First Step] bill would enhance public safety by increasing the availability within federal prisons of activities that have been — and would continue to be — evaluated to most effectively reduce recidivism, including faith-based mentorship, job training and work programs, education, victim impact classes, and family relationship-building programs. … The First Step Act calls for prison wardens to partner with nonprofits, institutions of higher education, and private entities to provide this much-needed programming.”

While the House version of First Step was enough for that body to act, the Senate was more skeptical. Senators have added sentencing reform to the mix, concentrating on fixes in four key areas:

  • The “stacking” of sentences, which allows for draconian prison terms even for first offenders.
  • The imbalanced sentencing for offenses involving crack cocaine versus its powdered form, which would allow a new course for appeal based on Fair Sentencing laws.
  • An expanded “safety valve” provision that will allow low-level drug offenders the possibility of a reduced sentence for cooperating with authorities.
  • Slight reductions in sentencing length for second- and third-time drug offenders, with the latter receiving a 25-year sentence rather than mandatory life imprisonment.

While the Trump administration is foursquare for First Step, there are senators who oppose the bill. While Republican Sen. Tom Cotton of Arkansas said First Step “has some good parts,” he questions whether prisoners will be released early for activities “defined so vaguely that, according to the Bureau of Prisons, playing softball, watching movies, or doing activities that the prisoners are already doing today will result in new time credits.”

With regard to the sentencing reform included, Cotton asks, “Since when has increased judicial discretion been a conservative principle? Proponents of this bill are suggesting that we put our faith in the wisdom of the same district-court judges who are issuing nationwide injunctions against the Trump administration for merely enforcing our immigration laws. Remember, about three-fifths of active district-court judges were appointed by Clinton or Obama. This bill relies on their discretion to keep the American people safe.” (John Roberts, call your office.)

Countering Cotton’s assertions, fellow Republican senator and bill supporter Mike Lee argues, “The recidivism-reduction programs Cotton is so concerned about are designed by federal prison wardens, not prisoners. … Furthermore, the bill mandates data analysis on the effectiveness of each recidivism-reduction program. If the program is not proven effective, wardens will not award time for participating in it.”

Moreover, Lee says:

The legislation doesn’t ask “government bureaucrats” to “judge the state of a felon’s soul.” Rather, it directs experienced law-enforcement officers to determine whether an offender is a danger — a job they already do daily, in order to run the nation’s federal prisons. Similar risk assessments have already been implemented in Texas and Georgia, and these states are hardly the post-apocalyptic criminal hellscapes that Cotton predicts such a system would cause.

As to Cotton’s point about tomfoolery by a future administration, if a president wanted to empty the nation’s prisons, tinkering with the standards for earning recidivism-reduction credits would be an odd way to achieve that goal.

Both senators, and countless others on both sides, have made compelling arguments, but the time for action is drawing short. While the House vote was overwhelming in the spring, Democrats, who will take control in January, may be loath to move forward with any bill that President Trump supports, no matter the merits. If Trump is going to sign meaningful sentencing reform as his second major December bill-signing in as many years (after the Tax Cuts and Jobs Act in December 2017), both the Senate and House — which has to pass the bill with the Senate amendments — will have to work quickly.

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