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Incorrigible: The First Step Act and the Carceral State

by Marie Gottschalk

With much fanfare, President Donald Trump signed the First Step Act into law in December 2018. New Jersey senator and presidential candidate Cory Booker hailed the legislation as a milestone that marked a “meaningful break from decades of failed policies that led to mass incarceration.” Other supporters were more measured, characterizing it as a modest first step to keep the momentum going for criminal justice reform. 

The greatest sins of the First Step Act are not its modesty but its audacity. The legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform. CNN commentator Van Jones was wrong to claim that the First Step Act is a “rare clean bill” that “does no harm.” 

Grounding penal policy in the best evidence-based research is a mantra in criminal justice reform circles. Yet key provisions of the First Step Act are at odds with leading research on how to enhance public safety while minimizing social and economic costs and maintaining a fair criminal justice system that treats everyone – including people who are imprisoned – with dignity.

To its credit, the First Step Act includes some modest sentencing reforms that will likely result in the early release of several thousand of the 180,000 people serving time in federal prisons. The legislation makes retroactive the Fair Sentencing Act of 2010, which reduced (but did not eliminate) sentencing disparities between crack and powder cocaine. It lowers the penalties for some other drug offenses and softens the federal three-strikes law but does not make these sentencing reforms retroactive. The measure expands the availability of early-release credits for some prisoners and of compassionate release for those who are gravely ill. The First Step Act also ameliorates some conditions of confinement by, for example, prohibiting the solitary confinement of juveniles and the shackling of pregnant prisoners.

Except for the sentencing reforms, the federal Bureau of Prisons (BOP) already had the power to implement most of these changes through its administrative authority. Indeed, for nearly a decade now, the shackling of pregnant women has been banned in the federal system. In its final year in office, the Obama administration prohibited placing juveniles in solitary confinement. 

The addition of the modest sentencing reforms to a revised version of the First Step Act prompted the Leadership Conference on Civil and Human Rights and dozens of civil rights and criminal justice reform organizations to do an about-face. They endorsed the measure even though many of the “grave concerns” they had raised when the bill was first introduced in spring 2018 had not been rectified. 

Too Risky?

Their top concern was the bill’s centerpiece – the development, in their words, of a “dangerous” algorithmic “risk and needs assessment system” that risked “embedding deep racial and class bias” into early-release decisions in the federal prison system. As they noted in a letter in May 2018, the research documenting the discriminatory effects of risk assessment tools is extensive. For example, a ProPublica study of Broward County, Florida found that the risk assessment system used in sentencing decisions was twice as likely to mistakenly predict the future criminality of African Americans compared to its predictions for whites.

With the growing popularity of risk assessment systems, prisoners are getting doubly penalized for their criminal history. The United States is exceptional in that prior criminal history weighs heavily in the initial sentencing decision. A defendant’s “prior record often matters more than the offense of which he was convicted,” according to Michael Tonry of the University of Minnesota Law School. Most other Western countries accord past criminal behavior a trivial role in sentencing. 

In the sentencing guidelines systems used in many jurisdictions across the United States, repeat offenders often receive sentences two or more times more severe than first-time offenders convicted for the same crime, according to research by Kevin Reitz with the University of Minnesota Law School. Like many sentencing guidelines, risk assessment systems place heavy weight on criminal history in determining who qualifies for early release. 

The burden of that history falls heaviest on low-income people and people of color. They are more likely to be disproportionately apprehended, arrested and incarcerated due to factors unrelated to the proportion of crime they commit. These include intense police surveillance of their neighborhoods, inadequate legal representation, and the race, class and other biases that accumulate at each step of the criminal justice system. 

The First Step Act’s preoccupation with risk assessment bolsters a disturbing tendency to valorize recidivism rates as the key indicator of what the government and the public are receiving in return for the $172 billion in tax dollars that the Prison Policy Initiative estimates the United States spends each year on law enforcement for criminal behavior, corrections and criminal court cases. At the elite legislative level, the movement against mass incarceration has been morphing into a movement against recidivism. But recidivism, which the First Step Act mentions more than 100 times, is a poor gauge of public safety and of how good a job prisons are doing. 

The U.S. approach to former prisoners stands in striking contrast to how they are treated in other Western countries. With its focus on recidivism and risk assessment, the First Step Act is more about catching a person doing something wrong rather than ensuring that people receive the housing, health care and other supports they need to successfully return to their communities.

The obsession in the United States with recidivism rates has fostered the mistaken belief that former prisoners are the primary drivers of crime rates. Research findings that the majority of former prisoners recidivate within three years have spurred alarming claims about a “walking crime wave,” in the words of Heather MacDonald of the conservative Manhattan Institute, as hundreds of thousands of prisoners are freed each year only to be returned by the “revolving door.”

Left unsaid is that recidivism is a notoriously slippery concept, variously defined as rearrest, reconviction or return to prison or jail for a new crime or for a technical violation of probation or parole, such as a failed drug test or curfew offense. The number of people who are sent back to prison for committing a new serious crime is trivial; the overwhelming majority who return to prison commit minor crimes or technical violations.

Although former prisoners are arrested at a far higher rate than the general population, they are responsible for only a small fraction of crime committed each year, according to research by Richard Rosenfeld of the University of Missouri-St. Louis and other criminologists. Furthermore, during periods when the overall crime rate is falling while the number of people released from prison is rising – as has been the case since the mid-1990s – the overall contribution of former prisoners to the crime rate is likely to grow, even if recidivism rates are stable or even falling. “All else equal, the lower the general population’s crime rate, the greater will be the proportion of all crime attributable to ex-prisoners,” according to Rosenfeld and his colleagues.

Relatively lower recidivism rates are not necessarily evidence of sound penal policy. Jurisdictions that cast a wide net that sweeps up many low-level offenders in their jails and prisons rather than sentencing them to probation or some other alternative to incarceration tend to have lower recidivism rates. But they pay a high social and economic cost for their over-incarceration of low-risk offenders. 

Jurisdictions that make extensive use of parole tend to have higher recidivism rates because more of their former prisoners are under the surveillance of parole officers and subject to onerous parole conditions that, if violated, could send them back to prison. 

“Comparing virtually any group of states or cities with simple, aggregate recidivism figures is inherently misleading and should constitute statistical malpractice,” stated criminologists Jeffrey A. Butts and Vincent Schiraldi. 

Arrest rates are measures of police activity, not necessarily of criminal behavior. People subject to greater police attention, notably young minority men, residents of high crime areas and people with prior criminal records, tend to be arrested more often. 

“The number of traffic citations written by a police department may be a useful measure of enforcement actions, but communities would never use the number of citations as a metric for judging actual improvements in traffic safety,” explain Butts and Schiraldi.

The First Step Act, which the Fraternal Order of Police eventually endorsed, will enhance the capacity of police to surveil and arrest. The legislation explicitly channels any money saved by reducing the prison population to law enforcement, the Bureau of Prisons and the latest front in the endless drug wars. Like many other measures billed as criminal justice reform, the First Step Act perverts the original premise of the justice reinvestment movement – that these savings should be used to rebuild communities devastated by mass incarceration. 

What is Reentry?

The emphasis on recidivism has contributed to a narrow conception of reentry. Most of the First Step Act’s reentry funding is explicitly tagged for programs designed to reduce recidivism rates by improving the human capital of prisoners both while they are incarcerated and after release. But it is well-established that even the best educational, vocational, substance abuse and other programs have only a modest impact on lowering the unemployment and recidivism rates of former prisoners. They also are relatively expensive and hard to replicate on a large scale.

We know that some prison-based substance abuse and other programs greatly improve the health outcomes and quality of life for prisoners and their families. These programs may only nick recidivism rates in the short term but help people desist from crime over the long term. The evidence is overwhelming that providing incarcerated men and women with opportunities to participate in meaningful employment, education and self-improvement programs fosters safer, more humane and less degrading prisons. Such programs are symbolically important. They are a public acknowledgment that prisoners are still citizens who do not deserve to be warehoused in degrading, abusive environments. But thanks to the obsession with recidivism rates, these programs have less political standing. 

The preoccupation with lowering recidivism rates diverts public attention from reckoning with some of the most insidious effects of mass incarceration. The low wages and joblessness among former prisoners are not simply the predictable result of skill deficiencies and antisocial behavior, but of incarceration itself, which erodes social networks, stigmatizes people with a criminal record and disqualifies them from many licensed occupations. Bruce Western of Columbia University estimates that the lasting effect of imprisonment on personal income is enormous, reducing the annual earnings of former prisoners by 30 to 40 percent.

Human capital is a major factor in determining who gets a job and desists from crime after leaving prison – but it is the human capital they already had at the time they were incarcerated, not whatever skills or education they acquired while serving time. 

Larger political, social and economic forces drive crime rates and are powerful determinants of who desists from crime. Prisoners released to poor neighborhoods are more likely to reoffend. So are those who lack access to adequate health care and who return to unstable communities with few nonprofit groups offering services and other resources. 

Champions of criminal justice reform on the right, most notably the Koch brothers, Grover Norquist and Newt Gingrich, have rallied on behalf of reentry while viciously undermining the proven roads out of poverty and crime, including a good public education, a robust safety net, public job creation, a strong labor movement, affordable housing in stable, integrated neighborhoods and Medicaid expansion. 

 The recidivism problem pales in comparison with disquieting research findings on the mortality rates of former prisoners. One study in Washington State found that the risk of dying shortly after release is astronomical – nearly 13 times higher than the adjusted mortality rate for the general population. Former prisoners are over 100 times more likely to die of an overdose within the first two weeks after release and are at greater risk of suicide. Moderately higher rates of mortality persist many years after people have completed their sentences. A prison sentence is in many cases a death sentence. But former prisoners who die prematurely do help to keep recidivism rates down.

Van Jones’ claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal – not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designated $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each federal prisoner. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to The Sentencing Project, which ultimately gave its qualified support to the First Step Act.

The legislation also includes reauthorization of the Second Chance Act of 2007 at $95 million annually over the next five years for pilot substance abuse, reentry and prison-based educational and vocational programs at the federal, state and local levels. This works out to about $43 a year for each person currently incarcerated in the United States, or barely $14 a year for each of the nearly seven million people under control of the criminal justice system today. 

The Trump administration’s proposed 2020 budget is even stingier. Advocates were outraged to discover when Trump unveiled his budget in March 2019 that it apparently included only $14 million for the First Step Act in the coming year – not the promised $75 million. The budget also shortchanged the reauthorized Second Chance Act by $10 million for 2020. 

The First Step Act establishes a perverse incentive structure to prod more prisoners to participate in programs. It authorizes the Bureau of Prisons to use transfers to facilities closer to home and additional “phone and visitor privileges” as carrots. But additional to what? Prisoners have no statutory right to a certain number of visits and phone calls. The First Step Act acknowledges as much by referring to privileges, not rights. The legislation opens the door to a possible new normal in which all phone calls, visits and transfers are considered earned privileges contingent on program participation.

Across the country, prisons and jails have been constricting access to the outside world by banning postal mail, curtailing visitation hours, and pushing e-mail and videoconferencing provided by for-profit companies as alternatives. They also have been limiting media access and charging exorbitant fees for phone calls. Indeed, shortly after Trump-appointee Ajit Pai became chairman of the Federal Communications Commission in early 2017, he announced that the FCC would not defend regulations capping intrastate prison and jail phone rates that the agency had imposed during the Obama administration. Those rate caps were then struck down by the D.C. Circuit Court of Appeals.

These developments are at odds with the fact that ongoing contact with family and friends has proven to be a critical factor in successful reentry and desistance from crime. Such contact is vital in mitigating the trauma that incarceration inflicts not just on prisoners but also on their children and other family members. 

Making phone calls, visits and transfers contingent on program participation will be particularly problematic for people convicted of sex offenses. The federal government and many states have established Alice-in-Wonderland mazes of civil commitment laws and policies that permit the government to civilly commit people after they have served their time in what amounts to indefinite detention in prisons or prison-like facilities. Prisoners are wary of participating in sex offender treatment programs because what they say in treatment may be used against them in civil commitment hearings.

The fundamental problem is not that prisoners do not want to participate in programs but rather the critical shortage of programs, let alone quality programs. Currently 16,000 people are on the wait list for the BOP’s literacy program, for example. 

Overcrowded, Understaffed

The federal prison system is in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors and even cooks have been drafted to serve as temporary prison guards because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system. 

It is impossible to run effective prison programs when prisoners are locked down in their cells due to staffing shortages, teachers and counselors are filling in for guards, and assaults and violence are on the rise – as has been the case in federal prisons. 

“These dangerous staffing levels that contribute to incidents of violence are unacceptable,” declared U.S. Rep. Thomas Marino in a December 2018 letter asking the Government Accountability Office to assess how reduced staffing is affecting the safety of federal prisons.

If these dangerous conditions persist, once the new risk and needs assessment tools are implemented, more prisoners in the federal system will be deemed high risk and unworthy of early release as a result of the rise in violence due to overcrowding and understaffing.

The Bureau of Prisons is not blameless for this crisis. It has enormous discretion that it has been unwilling to wield to reduce the federal prison population and improve conditions of confinement. 

For all its law-and-order zeal in the 1980s and 1990s, Congress nonetheless endowed the Bureau of Prisons with important administrative powers to reduce the federal prison population that it has been unwilling to use. More than a decade ago, an American Bar Association report concluded that, without any changes in the federal sentencing guidelines or creation of new programs, the BOP could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes.” Instead, the Bureau has promulgated dire projections about the need for more prison beds as it has gone hat in hand to Congress each year for more money to expand the federal prison system. This pattern did not change much under President Obama.

No Second Look

The BOP has largely ignored the little known but potentially powerful “second look” provision of the Sentencing Reform Act of 1984. It permits a sentencing judge to reduce a sentence if the court finds that “extraordinary and compelling” circumstances warrant such a reduction. Under the statute, the BOP plays a key gatekeeper function, responsible for filing the resentencing motion with the courts. The legislative history of this provision suggests that Congress sought to recognize a wide range of circumstances that would qualify for resentencing. But over the years, the BOP has interpreted this statute very narrowly. In 2007, the U.S. Sentencing Commission adopted a new rule that set no limit on what constitutes “extraordinary and compelling circumstances,” but little changed at the BOP. 

The Bureau has made scant use of other mechanisms to reduce the time served by federal prisoners, including community corrections and the Residential Drug Abuse Program, and has deployed stingy and arguably incorrect formulas to calculate good-time credits and release dates.

Like many state departments of corrections, the BOP has had compassionate release policies and laws on the books that would permit the early release of some infirm prisoners. In 2013, the Office of the Inspector General issued a piercing report on the BOP’s mismanagement of the compassionate release program, noting that most terminally ill prisoners died before the BOP even scheduled a hearing on their petitions for release. Under the First Step Act, prisoners are now permitted to file motions for compassionate release directly with the sentencing courts and no longer have to rely on the BOP to submit them.

No First Step for Many

Defending reentry and prison programs in the name of reducing recidivism rates, trimming penal budgets and cutting the prison population is a risky and self-defeating strategy. If crime rates escalate or if the recidivism rate remains stubbornly unchanged despite all the reported investment in reentry, the moment will be ripe for another public outcry that “nothing works.” Once again, imprisonment will be seen as the only answer to the crime problem – despite a mountain of evidence from the National Academies of Sciences and other leading researchers that locking up people at record levels in the United States did not reduce the crime rate by much, but did have enormous social and economic costs.

The First Step Act flies in the face of the best research on crime and punishment in other ways. It excludes from consideration for early release to halfway houses or home confinement wide swaths of the federal prison population based on offense categories and immigration status. The list includes dozens of offenses, including homicide, computer fraud, alleged gang membership, many immigration-related offenses, nearly all sex offenses, and many categories of assault and possession of a firearm. The category of “violent” offenses is broadly drawn, including, for example, all threats of use of force. Terminally ill prisoners convicted of sex offenses or violent crimes are ineligible for compassionate release. Many documented immigrants and most undocumented immigrants will not qualify for early release, regardless of their offense.

These exclusions bar many people who do not pose serious threats to public safety from being released early. This approach bolsters the fiction that the United States can slash its prison population by focusing on the “non, non, nons” – people convicted of nonserious, nonsexual, nonviolent crimes. It is at odds with the widespread consensus among experts on crime that criminal menopause exists. Most people age out of crime, even those convicted of violent offenses. 

The Penal Market

The First Step Act will foster privatization of the prison system in troubling ways that have received little public attention. As calls to end mass incarceration have escalated in recent years, the private prison industry has been repositioning itself in the marketplace by pushing for the expansion of immigrant detention facilities and by riding the reentry and recidivism wave. 

CoreCivic and The GEO Group, the country’s two largest for-profit prison companies, championed the First Step Act, which seeks to enable more public-private partnerships in reentry services, halfway houses and home confinement.

Private prison companies have sought to diversify by becoming leaders in what GEO describes as the “corrections lifecycle.” This includes investing heavily both economically and politically in what critics have called the “Treatment Industrial Complex,” comprised of for-profit mental health and substance abuse programs, drug testing, electronic monitoring and other reentry services. As the private sector rapidly expands into the for-profit reentry market, the risk of “net widening” is high. A critical report by the American Friends Service Committee’s Arizona office warns that more people will be placed under stricter forms of supervision than is necessary. 

The First Step Act promotes the privatization of the penal system in other ways. It expands the market for products made by Federal Prison Industries (aka UNICOR). This penal labor program has an ignominious record of enlisting federal prisoners to do dirty, dangerous jobs with little regard for their health, safety or dignity. Federal Prison Industries will now be permitted to sell its products to correctional facilities, tax-exempt organizations and elsewhere. 

Some leading conservatives have long contended that prisons and jails should be liberated to pay their own way or even turn a profit. For more than two decades, the conservative American Legislative Exchange Council (ALEC) has pushed to relax restrictions on the use of penal labor to make prisons more self-supporting and even profitable. Since the 1990s, states and the federal government have been dismantling Depression-era restrictions on the use of penal labor that unions played a key role in putting in place. In its letter of support for the First Step Act, the AFL-CIO did not even mention the penal labor issue. 

New Mandates for the Bureau
of Justice Statistics

One potentially promising provision in the First Step Act requires the government to provide a fuller portrait of who is serving time in federal prisons and the conditions of their confinement. It obligates the Bureau of Justice Statistics (BJS) to collect vital information about federal prisoners, including how many are veterans, pregnant women, undocumented immigrants, high-school drop-outs and parents of young children. The BOP must enumerate how many federal prisoners participate in educational and other programs each year, including medically-assisted treatment for substance abuse, and how many were placed in solitary confinement. It must report the number of federal prisons that had no healthcare professionals onsite and the number of assaults on prison staff (but not assaults on prisoners), among other things. 

It is hard to view these important new mandates as anything but aspirational in the current political moment. Even before Trump took office, the BJS, which is part of the U.S. Department of Justice, was failing to provide some basic data about crime, punishment and law enforcement in the United States.

Since its inception four decades ago, the BJS has focused on collecting data about “street crime,” not white-collar or corporate crime, thus contributing to a distorted understanding of crime in the United States. Strapped for resources, the BJS has been slow to assess new areas of criminal activity, most recently identity theft and cybercrime. Periodically, leading criminologists have questioned the validity of the agency’s National Crime Victimization Survey, the nation’s leading barometer of crime trends, because of cutbacks in sampling. The national uproar over the 2014 death of Michael Brown in Ferguson, Missouri revealed that the country’s premier clearinghouse for data on law enforcement does not even keep track of how many civilians are killed by the police each year.

The Trump administration has compounded these problems and added some. As Michael Lewis documents in The Fifth Risk, his latest book, the Trump administration has been “disappearing” all kinds of vital data that had been routinely available to researchers and the public on government websites and elsewhere. It also has defunded the collection and analysis of information on everything from climate change to bird flu. The Trump administration has sought to give its friends in the private sector exclusive access to government data so they can exploit it for profit. The most notorious example is the effort to restrict public access to National Weather Service data that is critical in issuing advisories about snowstorms, floods, tornados, hurricanes and other weather-related threats. 

Throughout the federal government, Trump has appointed people who are openly hostile to the mission of their departments and agencies, are clearly incompetent, or are both hostile and incompetent. In late 2017, with little public notice, the president appointed Jeffrey H. Anderson as director of the BJS. At the time, Anderson, who is a fierce critic of Obamacare, directed the Office of Health Reform at the U.S. Department of Health and Human Services.

Prior to joining the Trump administration, Anderson was a frequent commentator in the conservative media. In a 2016 column, he advised candidate Trump against supporting the cause of criminal justice reform and chided Republicans for working with Democrats on this issue. He misleadingly implied that rates of crime and drug use soared during President Obama’s tenure, and blamed Obama for “pouring gas on that fire.” 

Compared to his immediate predecessors, Anderson has little background in criminal justice. His knowledge of statistics appears limited to creating a controversial rating system for college football. It is doubtful that Anderson will prod the federal Bureau of Prisons to do the right thing and collect the raw data the BJS needs to fulfill the First Step Act’s new mandates. Even if the BOP has the will to collect this information, it arguably does not have the capacity given its current understaffing and overcrowding crisis. 

With a sleight of hand, the Trump administration may indeed end mass incarceration by no longer collecting and disseminating basic information on the number of prisoners in the United States, let alone the other vital data now mandated by the First Step Act.

Faith-Based Reform

It is truly faith-based criminal justice policy to think any of this is going to change much for the better with the First Step Act, which was enacted just days after President Trump nominated William Barr to succeed Jeff Sessions as attorney general. Barr championed a slew of hardline penal policies when he served as George H.W. Bush’s attorney general. Shortly before leaving office in 1992, he endorsed a Department of Justice report, “The Case for More Incarceration,” to justify those policies. During his two days of Senate hearings in January 2019, Barr was incorrigible and unapologetic. He defended the policies that built the carceral state and continued to claim, despite all the mounting evidence to the contrary, that locking up record numbers of people in the United States was responsible for the historic drop in crime rates since the mid-1990s.

Trump rode into office on a refurbished Nixonian law-and-order campaign. Some people have consoled themselves that the damage he can do to the criminal justice reform movement is minimal because barely eight percent of the U.S. incarcerated population is housed in federal prisons. Most prisoners – more than two million in all – serve their time in prisons and jails run by state and local governments. But as with other high-profile debates over crime and punishment – super predators, Willie Horton, the drug wars, three strikes, the crack-powder cocaine disparity, truth-in-sentencing – what happens in Washington rarely stays in Washington. The First Step Act will have powerful trickle-down effects on criminal justice policy. 

Van Jones credits former prisoners and their families for their decisive role in passage of the First Step Act. He singles out Jared Kushner, Trump’s son-in-law and senior adviser whose father served time, as the legislation’s superhero. Like many other prominent commentators, Jones ignores the fact that some key organizations of former prisoners and their families opposed the final version of the legislation. 

Those groups castigated the First Step Act for furthering what Michelle Alexander has termed “e-incarceration” or the “Newest Jim Crow.” 

“The FSA’s carve-outs of vulnerable populations, the ushering in at the federal level of risk assessment technology and the growth of electronic monitoring must not become the norm, especially now that there is so much momentum for decriminalization and decarceration” at the local and state levels, declared DeAnna Hoskins, the head of JustLeadershipUSA. She noted that formerly incarcerated women have been lobbying for the federal Dignity Act (S.1524), which does not include “harmful concessions” like those in the First Step Act. 

Introduced two years ago in Congress, the Dignity Act would require the Bureau of Prisons to implement a slew of policies to improve the lives of imprisoned women and parents. These include mandates to place parents in facilities as close as possible to their children’s homes, to expand visiting days and hours for primary caretakers of children, to permit physical contact during visits unless someone is a danger, to forbid solitary confinement for pregnant and postpartum women, to stop charging prisoners for phone calls, to implement free videoconferencing (but not as a substitute for in-person visits or calls), and to restrict strip searches and other activities by prison employees of the opposite gender. Of course, the BOP does not need congressional authorization to implement these measures should it choose to do so. 

Patrisse Cullors, co-founder of Black Lives Matter, and others denounced the impossible situation that the flawed First Step Act put her and many other advocates of criminal justice reform in. It forced them to choose between concrete short-term victories for a few thousand people at the expense of justice over the long term for the people and communities devastated by the carceral state. 

“My own experience of incarceration took place decades ago. Had FIRST STEP’s proposed risk-assessments been in place for me then, I would have been released on account of my low-risk profile,” explained Rev. Vivian Nixon, executive director of the College & Community Fellowship, in a written statement. “But I would not be willing to sacrifice the dignity and comfort of the vast majority who are excluded from this bill for comforts granted to the fortunate few.”  

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Marie Gottschalk is a professor of political science at the University of Pennsylvania. Her latest book is Caught: The Prison State and the Lockdown of American Politics. A shorter version of this article first appeared in Jacobin magazine.

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