In its outgoing announcement of then-President Donald Trump's accomplishments, the White House listed the First Step Act as “the first landmark criminal justice reform legislation ever passed to reduce recidivism and help former inmates successfully rejoin society.”
Anyone who wants to attribute any positive accomplishments to Trump shouldn't include the First Step Act among them. The Trump administration followed neither the letter nor the spirit of the law.
Interestingly enough, the White House implicitly acknowledged that the extent of Trump’s efforts on the First Step Act was to sign it: even his farewell address admits that it was “passed” (which is Congress' job) and doesn't mention its implementation, which is largely the role of the executive branch
Implementation of the law is where it would have had a demonstrable effect on the people it was meant to help; it's also the part the executive branch is wholly responsible for, and the part the Trump administration has repeatedly failed at, causing many inmates to have to resort to court intervention.
As one might expect, whatever Trump giveth with one hand, he taketh away with the other.
It's now up to President Joe Biden to implement the First Step Act as it was written — even though Trump is claiming credit for it.
Plenty of smart people have fallen for Trump's tale: Last September, The New York Times published a “Fact-Checked List of Trump Accomplishments” and called the law a success; fully five of the 123 listed successes dealt with the law. Heck, even we begrudgingly credited Trump with doing something moral because of his support for the bill.
But, as one might expect, whatever Trump giveth with one hand, he taketh away with the other.
The law has two main objectives; to provide reductions in some federal sentences; and to incentivize people's participation in rehabilitative programming. Like so much that is Trump, the law is inherently transactional: In exchange for 54 days off in “earned time credits” for every year of their sentence, federal inmates must complete classes and work at their prison jobs.
But the federal government isn’t giving inmates the credits they’ve earned: The process of granting credits was supposed to start last January, but inmates are already getting stiffed.
It's now up to President Joe Biden to implement the First Step Act as it was written.
Trump’s former attorney Michael Cohen has become a case study in exactly how Trump failed to implement his own signature prison reform. Last month, he filed two petitions: one seeking his earned time credits, which would mean he could be free in May — approximately one year early; and another to make sure that the Bureau of Prisons orders the credits be issued, which will help those who remain inside get the credits they too have earned.
If he wins his second petition, Cohen will have done more to force the implementation of the First Step Act than his former client did.
Cohen is not the only person facing this broken promise. His lawyer, Danya Perry — who represented Cohen last summer when he was re-incarcerated as retaliation for publishing his memoir, "Disloyal" — also represented the first petitioner to convince a court to grant him the time credits the Bureau of Prisons owed him under the law. Perry says her office is now receiving calls from all over the country from other incarcerated people who are trying to force the bureau to acknowledge the credits they have earned so that they aren’t unlawfully imprisoned past the date the statute says they can leave.
Glen Adkins Jr., an inmate at FCI Terminal Island, is among those fighting to assure that the Bureau of Prisons obeys the law. His petition notes that Trump's Bureau of Prisons distributed an approved programs guide in October that changed the rules of the earned time credits program to limit the number of days that a person can shave off their sentence. That guide was issued without congressional approval, and directly contradicts the plain language of the First Step Act.
So far, the executive branch’s execution of the First Step Act has been replete with bad faith.
And while the criminal justice reform law contained a clause that said that these credits didn’t have to be implemented until 2022, that itself shows that Trump didn’t intend to provide relief to inmates who take their reform seriously. Allowing Trump to delay the implementation of his signature justice reform, while still taking credit for achieving it, amounts to taking another swig of Trump lies — something we’ve sworn off. Besides, the inmates have kept their part of the First Step Act bargain. So should he.
And the earned time credits aren’t the only part of the First Step Act that has been half-heartedly administered: amid a pandemic that has taken the lives of 204 federal inmates as of January 12 — some of whom might have been home before they were infected if the law had been followed — wardens denied 98 percent of compassionate release requests from coronavirus-infected inmates as of last May, even though the First Step Act expanded the criteria under which inmates could get some relief.
Biden can and should correct all of this immediately: Article II of the Constitution says that the president “shall take care that all laws are faithfully executed.” So far, the executive branch’s execution of the First Step Act has been replete with bad faith, though the judicial branch has offered some relief. The new president can and must reverse that by directing — via an executive order, if necessary — that all inmates receive their earned credits immediately and that wardens start giving real weight to compassionate release requests while the Covid-19 pandemic continues. It’s the perfect addition to Biden’s corrective agenda on Trump mistakes.
Meanwhile, we should all recognize that what everyone hailed as a historic change by the Trump administration was really just much of the same con as ever: a deal he made for the photo op with Kim Kardashian and the ability to stick it to his detractors. Don't continue to give him credit for championing justice reform now that he’s gone; given how he chose not to honor the promise of this law for two years, the First Step Act so far has been more stumble than stride.
CORRECTION (Jan. 22, 2021, 10:34 a.m ET): A previous version of this article misspelled the name of the lawyer who represented Michael Cohen last summer. She is Danya Perry, not Dayna Perry.