The general consensus inside the Beltway is that the criminal justice reform bill —the acronym-looking-for-words "Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person," a.k.a. the FIRST STEP, Act — recently backed by the president, may be the only piece of prison/sentencing reform legislation with any hope of passing a gridlocked Congress before 2020.
But it's still hardly a done deal: People like Sen. Tom Cotton, R-Ark., think it goes too far in securing freedom for prisoners; others like JustLeadership USA, an advocacy and reform organization dedicated to cutting the prison population in half by 2030, think it trades short-term gains for long-term harm; and even supporters like activist Van Jones admit the bill is less than perfect, but for what can be accomplished right now, it’s just right.
Each faction wants people to think that the fight here is about safety and what really constitutes a threat to it. But the FIRST STEP Act isn’t really about public safety; it’s really a second chance to define our society as something more and better than the poster child for mass incarceration. A new study released last week, for instance, showed that half of the adults in the United States have a family member who is or was incarcerated.
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Since the Omnibus Crime Control and Safe Streets Act was first enacted in 1970, the United States has been defined by incarceration. The United States is the world leader in incarceration with 2.2 million people currently in the nation's prisons and jails — a 500 percent increase since that legislation was enacted.
It was 24 years before a temporary rise in crime rates, a presidential race that hinged on Democratic opposition to the death penalty and a number of polls which showed crime, not the economy, were a major concern for Americans going into the midterms, combined with the fact that no federal omnibus crime control bill had been passed in 1992, prompted a reexamination of the nation’s crime policies, the end result of which was the then-bipartisan1994 Violent Crime Control and Law Enforcement Act, signed by President Bill Clinton. Between 1994 and 2016 alone, just the federal prison population doubled to around 180,000 people.
Or take the sentencing laws on crimes concerning crack or powder cocaine: The Anti-Drug Abuse Act of 1986 implemented a sentencing disparity for people convicted of crack-related crimes, making them as much as 100 times longer than sentences for powder cocaine crimes, reflecting Congress's view that crack (generally seen as a drug used by African Americans) was more dangerous than powder (generally used by wealthier white people).
Since then, both the United States Sentencing Commission and a host of other experts revealed the differences between the two drugs was exaggerated, that the sentencing disparity was unwarranted on a scientific level and that the social cost of it was devastating. It contributed to a disproportionate number of African Americans being sentenced to lengthy terms of imprisonment for crack cocaine offenses. Legislation to reduce the disparity had been introduced since the mid-1990s, but it wasn't until 2010 that the Fair Sentencing Act reduced the huge disparity, though it wasn’t retroactive.
Only changes in sentencing law and policy — not increases in crime rates — explain the explosion in incarcerated populations. Congress created the “Incarceration Nation,” and only Congress can undo it. The FIRST STEP Act is, at least, a start.
For instance, if it passes, the law would make the end of the crack-powder sentencing disparity retroactive, providing nearly 2,600 federal prisoners convicted of crack offenses before 2010 an opportunity to have their sentences reduced and brought into line with justice and common sense.
The bill will further help decarceration in two ways: First, by easing mandatory minimum sentences in the future and, second, by letting certain current inmates get out sooner.
It will accomplish the first goal by expanding the “safety valve” to allow judges to avoid imposing mandatory minimums, and changing the “three strikes” rule so that people with three or more convictions won’t get life sentences anymore. It would address the second goal by increasing the time credits that inmates can use to shave days or years off their sentences. One version of these credits — “good time credits” — allows inmates to earn 54 days off their sentence per year, up from 47. A week off doesn’t seem like a lot but this provision of the bill will be retroactive, which means some inmates — as many as 4,000 — to may start packing to leave the on the bill’s effective date.
But despite "tough-on-crime" intransigents like Cotton, and advocates who worry that that they’ll be stuck with a law that they won’t be able to change, the real risk is in passing no bill at all and no chance to pass anything for another 20 years. Gradualism has its benefits, but requiring people who’ve been harmed by federal statutes to wait 24 or 32 years for legislative relief is objectively unreasonable. It’s time for logic and progress.
Those who want to bridge this impasse could, however, take a hint from the bill’s acronym, and. add a second-look clause to FIRST STEP. By requiring Congress to revisit the bill in three or five years, we guarantee that any unintended errors within don’t last generations. A close horizon on review would motivate both sides to gather valuable data on which planks of the plan are performing as promised.
When incarceration has become a defining characteristic of American life — there are 70 million Americans who have direct involvement with the criminal justice system — we should change it. How we define ourselves as a nation doesn't have to be static; it can be pragmatic.
Senate Majority Leader Mitch McConnell said on Tuesday when he agreed to bring the bill to the Senate floor that it will probably be voted on during the last week of the year, so there’s still time for amendments. Add a review provision as a second step to FIRST STEP, and we’ll be on our way back to living up to our American ideals.