Ask an Attorney: Has the FIRST STEP Act Made a Difference?

Ask an Attorney: Has the FIRST STEP Act Made a Difference?

For those with incarcerated loved ones, it’s difficult to keep up with legal changes that might impact them. One of those changes happened in late 2018: Congress passed, and President Donald Trump signed, the FIRST STEP Act. Two years having gone by, it’s fair to ask: has the FIRST STEP Act made a difference?

Sentencing Reform is Needed to End Mass Incarceration — Something that Disproportionately Impact Black Americans

Despite having just five percent of the world’s population, the U.S. has almost 25 percent of its prison population, according to the Brennan Center for Justice. And, making matters worse, this mass incarceration disproportionately impacts communities of color more than anyone else.

More than 60 percent of the U.S.’s prison population consists of racial and ethnic minorities.  Even though Black Americans commit drug offenses at the same rate as White Americans, a Black individual is six times more likely to be incarcerated than a White one.

In fact, while Black Americans make up less than 15 percent of the U.S. population, they make up nearly 40 percent of the prison population. And, for historical context, these figures mean that there are more Black men in prison today than were enslaved in the middle of the 19th Century.

For years, advocates of criminal-justice reform have pointed to these statistics as evidence that reform was needed. In 2018, lawmakers took the first step.

Sentencing reform is needed and started with the FIRST STEP Act.
Image courtesy of Matthew Ansley on Unsplash.

The Bipartisan FIRST STEP Act is the Most Substantial Criminal-Justice Reform We’ve Had in the U.S. in a Generation

In late 2018, the Senate passed the FIRST STEP Act on a bipartisan basis 87-12. In Dec. 2020, the House overwhelmingly passed it by a 358-36 vote as well, putting one of the most bipartisan laws in front of a president in recent memory. And, on Dec. 21, 2020, President Donald Trump signed the FIRST STEP Act into law.

The FIRST STEP Act includes a variety sentencing-reform measures. For example, the Act eases the federal “three strikes” rule. Under this rule, individuals with three or more convictions face a life sentence. But, under the new Act, they face a 25-year prison term instead.

It also makes the Fair Sentencing Act retroactive. Passed in 2010, the Fair Sentencing Act has helped address the disparity between sentences for crack and power cocaine convictions, a disparity that has disproportionately harmed racial minorities. Retroactive application of the Fair Sentencing Act stands to impact several thousands of currently incarcerated individuals.

Beyond those crucial sentencing reforms, however, the FIRST STEP Act includes a key provision that can help get your loved one home sooner. Specifically, the FIRST STEP Act allows most incarcerated individuals an opportunity to earn around 15 days of “time credits” for every 30 days of “successful participation” in recidivism-oriented programs.

In general, lawmakers and advocates view the “30-15” positively on all sides. On the one hand, it increases participation in recidivism programs, hopefully reducing the number of folks who reoffender upon release. On the other, it fills the often gaping hole in providing prisoners a purpose while incarcerated.

Congress passed the FIRST STEP Act in late 2018.
Image courtesy of Louis Velazquez on Unsplash.

The FIRST STEP Act is Literally a First Step, But There’s Already Uncertainty With Its Implementation

The FIRST STEP Act is aptly named: It’s just the first step. And many lawmakers on both sides of the isle certainly don’t intend to just stop there. Yet, even though we’re just one step into the process of criminal-justice reform, there are already problems.

On its face, the ability to earn 15 days of “time credits” for 30 days of programming sounds achievable. Your mind automatically breaks it down into months: do 12 months of programming, and you get out six months early. Undoubtedly it won’t be that simple, we think, but it’s something to aim for.

But a recent report from the Federal Bureau of Prisons gives the impression that the target we’re aiming at is further away than we think. The report reflects some programs provide an opportunity for a significant amount of hours on a somewhat regular basis. For example, the “Bureau Literacy Program” is 240 hours and one and a half hours per day.

Other programs, however, are shorter and less frequent. Two female-only programs, “Assert Yourself for Female Offenders” and “Understanding Your Feelings: Shame and Low Self Esteem,” are only eight- and seven-week programs. And they are also only available on a one-hour-per-week basis, meaning you’d only earn eight or seven hours over the course of roughly two months.

And it isn’t just the frequency and length of the programs in the report that raise questions. There are numerous other questions advocates have been asking since the Bureau released it.

The FIRST STEP Act's implementation by the BOP is subject to criticism.
Image courtesy of Heidi Benyounes on Unsplash.

The Act Leaves Much Discretion in the Hands of the Bureau of Prisons, and Advocates Worry That’s Already a Problem

For example, how many “hours” constitutes a day under the FIRST STEP Act? If it’s eight hours per day, you’d complete one day of programming once you completed the eight-week “Assert Yourself for Female Offenders.” Only 29 more programs just like it, and you’d have 15 days worth of “time credits.” If you were only allowed to participate in one program at a time — something else that isn’t perfectly clear — it would take you 232 weeks to earn 15 days with one-hour-a-week programs like “Assert Yourself for Female Offenders.”

And this is just one potential issue with the FIRST STEP Act as implemented by the Bureau of Prisons. Other problems include how the Bureau has applied the law’s exclusions with respect to some prisoners. Some advocates contend that the Bureau has applied the exclusions so broadly that it disqualifies a much larger portion of the prison population than ever intended. Advocates also fear that the availability of programming is much spottier than the law requires.

The FIRST STEP Act isn’t perfect. But it’s a start. And, with President-Elect Joe Biden, Vice President-Elect Kamala Harris and a divided Congress heading into 2021, only time will tell what happens with the FIRST STEP Act and beyond on the federal level.

But the federal government isn’t the only government taking these necessary steps. Make sure to check out next week’s Ask an Attorney piece on North Carolina’s own First Step Act.

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