Last night, the Senate overwhelmingly passed the First Step Act (S.756), a bipartisan bill that will begin to address some of the flaws in the United States criminal justice system. We urge the House to follow the Senate’s lead and pass the First Step Act unamended, even as we have concerns with the bill and commit to continuing to advocate for meaningful and comprehensive criminal justice reform
Among the issues the bill positively addresses are some mandatory minimum sentences as well as important prison reforms. At the same time, the bill falls notably short by failing to retroactively apply many of its sentencing reforms, excluding too many individuals from its prison reform provisions, and insufficiently addressing the entrenched racial bias in the criminal justice system.
The Reform Movement has long recognized the harm created and perpetuated by the United States criminal justice system. As we work for a system that is truly just, we draw guidance from the prophet Ezekiel, who said “I have no pleasure in the death of the wicked, but that the wicked turn away from his life and live” (33:11).
The current U.S. justice system has failed to provide meaningful opportunities and resources for restitution and rehabilitation. Incarceration rates in the U.S. have exploded to over 2.2 million people[i] due to longstanding criminal justice policies with notably disparate racial impacts, such as mandatory minimum sentences. These policies have been particularly devastating for communities of color who make up 37 percent of the U.S. population but 67 percent of the prison population.[ii] More black men serve time in our correctional system today than were held in slavery in 1850.[iii] “Tough-on-crime” approaches to criminal justice have failed miserably in addressing the root causes of criminal behavior and make no serious effort to prevent recidivism or promote rehabilitation.
For this reason, we focus our advocacy on policies that address disparate practices in pre-trial, sentencing, prison conditions, juvenile justice, reentry, and recidivism. Each of these policy areas would be touched by the passage of the First Step Act.
We welcome provisions in the bill to reform federal sentencing practices that will:
- Allow approximately 2,600 people to petition for shorter sentences[iv] by retroactively applying the provisions of the Fair Sentencing Act, which reduced the 100-to-1 sentencing disparities between crack and powder cocaine, allowing individuals to petition for sentence reductions.
- Make approximately 2,100 people eligible for shorter sentences[v] by allowing judges to sentence below the mandatory minimum for qualified low-level nonviolent drug offenders who cooperate with the government, known as expanding the safety valve.
- Reduce the mandatory minimum for second drug felony convictions from 20 to 15 years and reducing the minimum for third drug offenses from life in prison to 25 years; however even with these improvements, these reforms still do not go far enough.
- Eliminate 924(c) “stacking,” meaning that sentencing enhancements for repeat offenses would apply only to true repeat offenders rather than the current system that allows enhanced sentences for possession of a firearm during a drug crime or a crime of violence.
We also support long-overdue prison reforms in the bill, including:
- Reauthorizing the Second Chance Act, including grant programs for drug treatment, vocational training, mentoring and other reentry and recidivism reduction initiatives.
- Improvements to the risk and needs assessment system by establishing an independent review committee and added transparency that will provide added protections to reduce bias and ensure it is evidence-based.
- Effectively ending federal juvenile solitary confinement.
- Prohibiting the shackling of pregnant prisoners and requiring the provision of health care products to incarcerated women.
- Requiring prisoners be placed within 500 driving miles of their home and providing additional phone, video conferencing and visitation privileges.
- Expanding evidence-based opioid and heroin abuse treatment for incarcerated people.
- Expanding compassionate release.
Even with these important reforms, the First Step Act falls short in achieving transformational change. In addition to failing to address the systemic racism inherent in today’s justice system, we are concerned about specific provisions in the bill, including:
- The lack of retroactivity for most of the sentencing reforms included in the bill, meaning more than 3,000 people will be left in prison despite the changes to the mandatory minimums that dictated their sentences.[vi]
- The omission of certain sentencing reforms, including reducing the 10-year mandatory minimum and ending juvenile life without parole.
- The potential for unintended harms by utilizing a risk assessment tool as a means of combatting recidivism, even with the revisions added to the bill.
- The many unfounded exclusions in eligibility to earn time credits on one’s sentence.
- The provision of faith-based recidivism reduction programs and services.
We hear the calls of some of our partners in the faith community, fellow travelers in our pursuit of justice, who reject the limitations of this bill and fear that it might exacerbate racism in the criminal justice system. We commit to continue working alongside them to truly reform the criminal justice system in a way that leads to the application of justice through just means. Even as we do so, we hope this bill will make meaningful change for some in our justice system. We urge the House to pass the First Step Act and begin the much needed and overdue transformational change of the U.S. justice system.
[iv] Letter from Glenn Schmitt, Dir. of Res. and Data, U.S. Sentencing Commission, to Janani Shakaran, Pol’y Analyst, Congressional Budget Office, regarding the Sentencing Reform and Corrections Act of 2017, United States Sentencing Commission (March 19, 2018), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/March_2018_Impact_Analysis_for_CBO.pdf.