by Steve Horn
On December 21, 2018, President Donald Trump signed into law the 56-page First Step Act (S. 756), a bill that will usher in an array of reforms within the federal criminal justice system. The bill went to the president’s desk just days after passing the Senate on an 87-12 vote.
Seen by its proponents as a major policy victory, others have cautioned that – while a positive step in the right direction – the legislation still leaves much to be desired. From the most sinister lens, critics point out it will likely benefit the private prison industry while excluding certain prisoners from some of its beneficial provisions.
The First Step Act has 36 distinct sections which address many aspects of federal sentencing and prison-related policies. They range from placing prisoners in facilities closer to their families to sentencing reform and de-escalation training for guards, plus creating a risk and needs assessment system. The bill also calls for studies on medication-assisted opioid addiction treatment for prisoners, and an expansion and accompanying audit of Federal Prison Industries (UNICOR), the Bureau of Prisons’ industry work program.
“Everybody said it couldn’t be done,” Trump said at the bill’s signing ceremony at the White House. “They said the conservatives won’t approve it. They said the liberals won’t approve it. They said no one’s going to approve it, everybody’s been against it.”
The Congressional Black Caucus supported the bill but also called for broader criminal justice reforms in the future.
“This legislation is what it says it is: a first step; and while it is an important first step, it is not comprehensive criminal justice reform,” the Caucus stated in a press release.
The bill was endorsed by a number of criminal justice reform groups, including #cut50 and Families Against Mandatory Minimums, as well as organizations as diverse as the ACLU, Right on Crime, American Correctional Association, American Conservative Union, Prison Fellowship and Fraternal Order of Police.
“This victory truly belongs to the thousands of people who, like me, have been personally impacted by incarceration and have dedicated their lives to improving the system,” said Jessica Jackson-Sloan, director and cofounder of #cut50.
Sentencing Reform, Good Time Credits
While the First Step Act reduces mandatory minimum sentences for certain serious drug-related crimes, including “three strike” drug offenders, such reductions are not retroactive and thus do not apply to prisoners currently serving harsh mandatory minimums. Going forward, 20-year mandatory sentences imposed on repeat drug offenders will be changed to 15 years, while life sentences imposed on three-strike drug offenders will be reduced to 25 years.
The bill does make retroactive the 2010 Fair Sentencing Act, which addresses the crack vs. powder cocaine sentencing disparity. Under that law, the disparity in sentences imposed for crack vs. powder cocaine charges was reduced from 100-to-one to 18-to-one. [See: PLN, Sept. 2010, p.26]. That change will now be applied retroactively to thousands of prisoners, resulting in shorter sentences in many cases. The process is not automatic, though; prisoners must file a motion or the BOP, a federal prosecutor or federal court must take action to seek a sentence reduction.
Additionally, the federal safety valve provision, which provides an exception to mandatory minimum sentences for nonviolent drug offenders with little or no criminal history, was broadened in the First Step Act – though not made retroactive.
“Let’s make no mistake, this legislation, which is one small step, will affect thousands and thousands of lives,” declared U.S. Senator Cory Booker.
The bill also clarifies the good time credits that federal prisoners can earn, specifying that such credits shall be “up to 54 days for each year of the prisoner’s sentence imposed by the court.” Previously, the BOP limited good time to 47 days per year. This change will be retroactive for all BOP prisoners.
As part of the risk and needs assessment system created by the First Step Act, federal prisoners will be assigned to evidence-based recidivism reduction programs, with incentives for participation that include additional phone, video visit and in-person visitation privileges, and transfer to a facility closer to a prisoner’s home. Other potential incentives include increased commissary spending limits, “extended opportunities to access the [BOP’s secure] email system” and moves to preferred housing units.
Prisoners who participate in evidence-based recidivism reduction programs are eligible to receive 10 days of good time credits for every 30 days of successful program completion, with an additional five days of good time for minimum- or low-security prisoners “who, over 2 consecutive assessments, [have] not increased their risk of recidivism.” Those credits are in addition to the 54 annual good time credits that prisoners can earn.
Credits received for participation in such evidence-based programs “shall be applied toward time in prerelease custody or supervised release,” meaning federal prisoners will be sent to halfway houses or placed on supervised release earlier based on the amount of credits they earn. However, certain prisoners are not eligible to receive the credits, including those serving sentences for drive-by shootings, assault with intent to commit murder, domestic violence by a habitual offender, offenses related to criminal street gangs, “unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime,” and most homicide and kidnapping charges, among dozens of others. Prisoners subject to deportation after serving their sentences are not eligible, either.
One criticism of risk-assessment systems, which are typically based on algorithms that use personal data to calculate risk scores, is that they are subject to racial bias. Whether that will be a factor in the BOP’s risk-assessment system remains to be seen.
For-Profit Reentry Services
The First Step Act also contains several sections that deal with reentry, which were supported by private prison companies such as GEO Group and CoreCivic (formerly Corrections Corporation of America). Those companies, which own numerous halfway houses and reentry centers that contract with government agencies, explained their support for the legislation in terms of helping prisoners get back on their feet upon their release.
Federal lobbying disclosure forms for GEO Group point to support for the bill in terms of what it will do for the company’s “reentry and supervision, offender rehabilitation, and location monitoring services.”
“GEO’s political and governmental relations activities focus on promoting the use of public-private partnerships in the delivery of correctional services including evidence-based rehabilitation programs, both in-custody and post-release, aimed at reducing recidivism and helping the men and women in our care successfully reintegrate into their communities,” the company said in one of its federal lobbying disclosure forms.
In April 2017, GEO Group acquired Community Education Centers (CEC), a company that focuses on reentry programs, for $360 million. GEO also owns BI, Inc., which provides electronic monitoring services. [See: PLN, March 2018, p.1; Aug. 2017, p.48].
For its part, CoreCivic – which owns dozens of community corrections facilities – also expressed support for the First Step Act, including in a December 19, 2018 press statement attributed to President and CEO Damon Hininger.
“At CoreCivic, we’re proud of the role that we’ve been playing through unprecedented commitments to strengthen the reentry programs in our facilities and to advocate at all levels of government for policies aimed at reducing recidivism,” reads the statement. “We’ve also invested hundreds of millions of dollars in building a national network of residential reentry centers that help thousands of people every day get ready with the skills and opportunities needed to succeed after prison. We feel strongly that our well-planned and executed effort, more than five years in the making, to diversify and transform our company toward reentry has been right for our business and our country.”
That national network of reentry centers was built to generate profit, of course, and both CoreCivic and GEO stand to benefit from the funding included in the First Step Act. Previously, both companies successfully opposed a shareholder resolution that would have required them to spend just five percent of their net profit on reentry and rehabilitative programs. [See: PLN, Feb. 2015, p.48].
Prison Legal News managing editor Alex Friedmann told The Intercept that “business as usual” for the private prison industry will still reign supreme under the First Step Act.
“These companies are very savvy,” said Friedmann, who was formerly incarcerated in a CoreCivic prison in the 1990s. “What [the bill] does is it perpetuates the industry. It gives them another inroad to do what they do, which is to profit off incarceration.”
The topic of reentry appears in four sections of the bill. Management and Training Corporation (MTC), a competitor to GEO Group and CoreCivic, also came out in support of the First Step Act. MTC operates community corrections and reentry facilities too, and thus stands to benefit from the legislation and the $75 million it authorizes each year from 2019 through 2023 to fund reentry and rehabilitative programs for federal prisoners.
Juvenile Solitary, Opioids
Another provision of the bill centers around solitary confinement of juvenile offenders. The First Step Act specifies that solitary “room confinement” can be used as a form of punishment, but only as a “temporary response to a covered juvenile’s behavior that poses a serious and immediate risk of physical harm to any individual, including the covered juvenile.”
Previously, solitary confinement of juvenile offenders was banned during the Obama administration by executive order; the ban and exceptions for placing juveniles in solitary are now part of federal law.
In the context of the opioid epidemic, the First Step Act dictates that the BOP produce a report – to be submitted to the Committees on the Judiciary and Committees on Appropriations in both houses of Congress – which examines medication-assisted treatment and if it is a viable option for federal prisoners who have opioid and heroin addictions.
“In preparing the report, the [Bureau of Prisons] shall consider medication-assisted treatment as a strategy to assist in treatment where appropriate and not as a replacement for holistic and other drug-free approaches,” the bill explains. “The report shall include a description of plans to expand access to evidence-based treatment for heroin and opioid abuse for prisoners, including access to medication-assisted treatment in appropriate cases. Following submission, the [BOP] shall take steps to implement these plans.”
Within 120 days, the bill calls for a similar course of action by the Administrative Office of the U.S. Courts. It requires the “Director of the Administrative Office of the United States Courts [to] submit to the Committees on the Judiciary and the Committees on Appropriations of the Senate and of the House of Representatives a report assessing the availability of and capacity for the provision of medication-assisted treatment for opioid and heroin abuse by treatment service providers serving prisoners who are serving a term of supervised release, and including a description of plans to expand access to medication-assisted treatment for heroin and opioid abuse whenever appropriate among prisoners under supervised release.”
One part of the First Step Act that largely flew under the radar expands the use of prison labor. Buried on page 49 of the bill is a section that could greatly expand federal prison industry programs and the market for products produced using prisoner labor.
Titled “Expanding Inmate Employment Through Federal Prison Industries,” the section allows for more vendors to purchase items manufactured by UNICOR, while also requiring the agency to be audited by the U.S. Government Accountability Office (GAO) within 90 days after the bill goes into effect.
The First Step Act allows products produced by UNICOR to be sold to “public entities for use in penal or correctional institutions,” “public entities for use in disaster relief or emergency response” and “the government of the District of Columbia.” Further, non-profit organizations can now purchase items directly from UNICOR.
Previously, only federal government agencies could buy from UNICOR, with those agencies being required to do so as their first option in most cases.
The section of the bill expanding the BOP’s prison industry programs came under fire from a Washington, D.C.-based advocacy group, the Center for Law and Social Policy.
“First Step would expand inmate employment through federal prison industries. These private companies employ incarcerated people in federal prisons and pay wages far below the federal minimum wage,” the organization wrote. “We are concerned about the expansion of prison industries because of the exploitative nature of these jobs and believe if these programs exist and are to be expanded, they should pay a fair wage.”
Wages for UNICOR, according to its website, range from $0.23 to $1.15 per hour. According to a December 2018 report submitted to the U.S. Department of Justice’s Office of the Inspector General, UNICOR generated $502.8 million in sales in fiscal year 2018 while pocketing over $13.9 million in net income. The report also revealed the agency employed over 17,000 prisoners during FY 2018.
Pursuant to the First Step Act, the GAO will perform an “evaluation of the scope and size of the additional markets made available to Federal Prison Industries under this section [of the bill] and the total market value that would be opened up to Federal Prison Industries for competition with private sector providers of products and services.”
The GAO will also examine prisoner wages, doing so by “taking into account inmate productivity” while also evaluating whether UNICOR programs have a positive impact on recidivism rates once incarcerated workers are released.
The First Step Act includes a provision that bans the shackling of pregnant prisoners, “beginning on the date on which pregnancy is confirmed by a healthcare professional, and ending at the conclusion of postpartum recovery,” unless a prisoner poses “an immediate and serious threat of harm” to herself or others. All uses of restraints on pregnant prisoners must be reported.
All female prisoners will be provided free tampons and sanitary pads, “in a quantity that is appropriate to the healthcare needs of each prisoner.” While the BOP had announced in 2017 that it would provide feminine hygiene products to prisoners at no cost, the bill codifies that provision into law.
With respect to where prisoners are housed, and in a nod to the importance of family support during incarceration, the First Step Act states the BOP “shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.”
The bill also allows federal prison guards to bring their personal firearms to work, though they must be stored in a secure area “outside the secure perimeter of the institution.”
The Correctional Officer Self-Protection Act, which was merged into the First Step Act, was drafted in response to the 2013 murder of BOP Lt. Osvaldo Albarati at the Metropolitan Detention Center, Guaynabo in Puerto Rico. Albarati was killed in a drive-by shooting after he finished his shift, reportedly in retribution for investigations he was conducting into cell phone smuggling at the facility.
That part of the bill garnered support from a number of law-and-order groups, including the Association of Correctional Administrators, the National Fraternal Order of Police, Gun Owners of America and the National Association for Gun Rights.
“Our nation’s prison guards are often taken for granted. They’re the forgotten men and women who face evil every day to keep our communities safe,” said U.S. Rep. David McKinley, who sponsored the legislation when it was a standalone bill. “This will provide them with one more tool to ensure they make it home safely to their families, giving them the peace of mind they need to perform their duties.”
Finally, among various other provisions – many of them technical in nature – the First Step Act reauthorizes the Second Chance Act, which provides funding for reentry programs and services, and includes improvements to the BOP’s compassionate release process – which has long been criticized. [See: PLN, Aug. 2018, p.58; Dec. 2014, p.50].
“Right There in the Name”
In an article published by Vox.com on December 19, criminal justice reporter German Lopez put the legislation into perspective. In short, he indicated it was truth in advertising.
“It’s right there in the name: It’s called the First Step Act, acknowledging that it’s, well, a first step. The bill doesn’t end the war on drugs or mass incarceration. It won’t stop law enforcement from locking up nonviolent drug offenders. It doesn’t legalize marijuana. It doesn’t even end mandatory minimums or reduce prison sentences across the board, and it in fact only tweaks both,” Lopez wrote. “This isn’t to take away from the legislation or suggest that it wasn’t worth doing. Thousands of federal prison inmates will benefit from the bill. But it’s important to put the bill in a broader context – to not oversell its impact, and to acknowledge there’s still a lot more room to make America’s federal criminal justice system less punitive.”
The key point is that the bill only affects federal prisoners – not the over two million men and women held in state prisons, local jails and other non-federal lockups.
It’s indeed a first step, one perhaps better described as a baby step. And it needs to be followed by a second step, third step and more – though the chances of additional criminal justice reform legislation being passed by Congress are exceedingly slim.
Sources: www.congress.gov, www.cnn.com, www.theintercept.com, www.bop.gov, www.prisonstudies.org, www.vox.com, www.unicor.gov, www.oversight.gov, www.wvnews.com, www.clasp.org, www.soprweb.senate.gov, www.opensecrets.org, www.mtctrains.com, www.c-span.org, www.cbc.house.gov, www.tampabay.com, www.lasentinel.net, www.theconversation.com, www.disclosures.house.gov, www.investors.geogroup.com, www.corecivic.com, www.theguardian.com, www.freedomworks.org, www.firststepact.org
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