The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform. It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration. “The First Step” is a new, award-winning film, documenting the passage of this historic act. The film gives viewers a behind-the-scenes look at the unlikely coalition formed between President Trump’s son in law, Jared Kushner, and CNN commentator and activist Van Jones. In the film we gain rare insights into the back door dealings, disagreements, and incredibly hard work that went into making the law a reality.
Throughout the film we are reminded that we must take small steps to achieve great things. Van Jones related this effort to the 1957 Civil Rights Act, itself not a monumental achievement — but it led to the 1960 Civil Rights Act and ultimately the 1964 Civil Rights Act that everyone remembers today. Jones reminded his team to “Start small and build.” Sen. Cory Booker (D-N.J.) preached the same, saying the FSA is just a “step in the right direction.”
I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA. I witnessed first-hand some of the scenes depicted in the film and saw the politics and horse trading that went on behind closed doors. As well documented in film, the FSA is important legislation. But how successful is it? I argue it was a small start, hopefully, on the way to something bigger.
The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison. In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2. So, in short, yes, we definitely need something bigger: a second step.
While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue. BOP is still calculating how people earn time credits, and they continue to release more in batches. Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.
The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement. The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating. Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs. The ones who truly need these programs are those deemed to be of medium or high risk of recidivating. Aren’t those the people we should be focusing on? But the FSA does not allow these people to earn time credits. In fact, I would argue the FSA actually disincentivizes medium- and high-risk people because why should they take a program that they won’t get time credit for, while the guy next to them is getting credit for the same program?
Let me be clear: I am not saying the FSA is a bad law. On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.
What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs. About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors. Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?
We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.
Hugh Hurwitz held multiple positions with the Federal Bureau of Prisons, including Acting Director, Assistant Director for Administration, and Assistant Director for Reentry Services. Currently, he provides consulting services in prison management, reentry and reform, organizational change, and other areas. He is a member of the Council on Criminal Justice.