May 22, 2018
By Justin George
The Marshall Project
The First Step Act, which passed the House of Representatives Tuesday, has been a hot-button topic for Congress.
It addresses the dire need for rehabilitative services in the federal prison system, proves there is strong bipartisan support for at least modest criminal justice reform and underscores a strategic debate that has split the Democratic Party.
What is the First Step Act? The bill, sponsored by Reps. Hakeem Jeffries, a New York Democrat, and Doug Collins, a Georgia Republican, seeks to add educational and vocational training and mental health treatment in federal prison. It earmarks $50 million a year over five years to expand these in-prison opportunities. It also expands the number of days in a halfway house or home confinement that inmates can earn for good behavior and self-improvement. It would expand the use of risk assessment tools—algorithms that try to predict future behavior. It bans the shackling of pregnant women; calls for placing prisoners in facilities that are within 500 driving miles of their families; and helps them get identification cards upon release.
Why is there a debate? Opponents, mostly on the left, say any criminal justice reform bill should also reduce mandatory minimum sentences or give judges more discretion to make the punishment fit the crime. A bipartisan Senate bill, the Sentencing Reform and Corrections Act, is also making its way through Congress. It includes “back end” reform—services for prisoners—and “front end” reform—reducing sentence time. Its supporters believe that the House bill is stealing support and momentum from the more comprehensive bill.
What’s the debate about? Proponents of the House bill say the comprehensive Senate bill being touted failed in 2016 when it had stronger bipartisan support and fewer obstacles during the Obama administration. Jeffries said an imperfect bill was a start. “You can’t simply wave one legislative magic wand and make it (mass incarceration) all go away,” Jeffries said last week during a House Judiciary Committee hearing. “It’s going to require a sustained effort, sustained intensity, sustained commitment and a meaningful first step.” Added Collins in the same hearing: “We can argue and talk about how I want to make it perfect. I wish that we passed perfect legislation up here all the time, but I don’t think there has ever been one, and holding a no vote on this bill is wrong. In fact, why would you vote no on a bill that would unshackle women who are having babies in prison? Why would you vote no on early release for elderly prisoners?”
Opponents say many of the mandates in the First Step Act can be accomplished without legislation. The Bureau of Prisons, for instance, has long been criticized for not releasing more elderly or infirmed prisoners under a process known as “compassionate release.” The bureau could also ensure that prisoners are placed closer to their families. They worry the bill, by relying on algorithms that may have a racial bias, could widen racial disparities in prison. But most of all, critics fear Congress will pass the more limited bill, congratulate itself and not return to the subject for years. The bill divides a strong coalition for comprehensive reform.
What happens next?
In the Senate, things get really interesting. Judiciary Committee Chairman Charles Grassley, a Republican, has become a stubborn and vocal defender of sentencing reform. Speaking to an audience of faith-based advocates Tuesday, Grassley said he had come to realize that mandatory minimums come at a huge cost. Grassley, the chief sponsor of the sentencing reform bill, said the House bill was unacceptable.
“For that deal to pass the Senate, it must include sentencing reform,” he said. “This is necessary for practical as well as political reasons. First of all, it’s the right thing to do. Judges should have discretion to make sure that the punishment fits the crime and that criminal defendants are incentivized to cooperate with police investigations.
Adjusting mandatory minimums for lower-level, nonviolent criminal offenders also saves a significant amount of money which can be used to target the worst offenders such as drug kingpins and violent criminals. Second, states that have seen the biggest drops in crime from criminal justice reform didn’t just do prison reform. They did sentencing reform too.”
Who’s lining up behind the First Step Act? More than 100 former federal prosecutors are endorsing the bill. Conservative groups such as the American Conservative Union Foundation believe the bill is a no-brainer. “So disappointed to see a handful of Democrats oppose the First Step Act because Cory Booker and Elizabeth Warren don’t want to give Republicans a win,” David Safavian, deputy director of the group’s center for criminal justice reform, tweeted before the House vote. “Putting politics over the lives of those incarcerated—and their families—is just a horrible thing to do.” Prison Fellowship, a faith-based advocacy group popular with evangelicals, also supports the bill. As does Families Against Mandatory Minimums. FAMM President Kevin Ring said he understands those holding out for sentencing reform, but he said it’s been years since any meaningful bills have passed to help prisoners. He said he believes Jeffries and Collins will not stop pushing for sentencing reform if the First Step Act passes.
Who’s opposing it? Liberal Democrats such as Sens. Cory Booker, Kamala Harris, Richard Durbin and Reps. John Lewis and Sheila Jackson Lee are leading the charge against the bill. More than 100 civil rights organizations are also opposing it, including the ACLU. “The FIRST STEP Act supporters say ‘something is better than nothing,’” tweeted Jesselyn B. McCurdy, deputy director for the ACLU’s Washington Legislative Office. “If criminal justice reform no longer addresses the very real problems in the federal system ... we are in trouble.” Former Attorney General Eric Holder said reformers should keep their eyes on the bigger prize. “Momentum for sentencing reform is being derailed by an effort that is misguided, ideological and outdated,” he tweeted. “The narrow ‘prison reform’ bill won’t deliver the transformative change we need. The only way to achieve that is by passing bipartisan, comprehensive sentencing reform.”
What does the White House support? President Donald Trump said if the prison reform bill reaches his desk, he will sign it. It’s less clear how he would react if Congress sent him a more ambitious bill, including sentencing changes. Attorney General Jeff Sessions has made it clear he does not support reducing sentences, and he worked hard to kill the Sentencing Reform and Corrections Act in 2016 when he was a senator. Jared Kushner, the president’s advisor and son-in-law, has been a quiet proponent of giving judges more discretion when sentencing, and in private meetings he has voiced support for a comprehensive bill. However, it seems as if a prison reform-only bill gives Trump what he wants: To look tough to his base by not budging on sentences while also showing evangelicals he believes in “second chances.”