The FIRST STEP Act sets up a dangerous future
The United States is the most incarcerated nation in the world, with a rate of incarceration that’s about six times higher than other NATO-founding countries. In this urgent context, the movement for criminal justice reform and the leadership of people harmed by this system continues to grow and bring forward bold demands.
Over 2 million of our neighbors and loved ones are caged in jails or prisons across the country. The federal government is directly responsible for approximately 225,000 of these human beings, including vulnerable populations of immigrants, women, children and LGBTQ and gender-nonconforming people. What the federal government legislates next on criminal justice reform will have consequences for these communities, policymakers and advocates at the state and local levels. Unfortunately, the FIRST STEP Act will not lead to decarceration; it will, however, further perpetuate structural inequality.
{mosads}In 1994, the federal government passed the Violent Crime and Control Act and set a disastrous course for states to follow. By incentivizing incarceration and encouraging “tough on crime” three-strikes laws, the government hit the gas pedal on mass incarceration. In 2018, the FIRST STEP Act threatens to have similarly disastrous consequences hastened by technology and privatization. By limiting “prison reform” to a combination of half-hearted credit time — which would leave people on home confinement or in halfway houses, rather than shorten sentences — and a reliance on risk assessment instruments that are steeped in racial bias, the FIRST STEP Act could hit the brakes on a nationwide movement to reform and redefine the justice system.
One of the most deceptive parts of this bill is that it creates the impression that people can earn time off of their sentence via new “credit time.” This is simply not true. This bill will keep people who earn credit time under the Bureau of Prisons’ control by replacing one form of incarceration with another. The FIRST STEP Act does not offer a real path toward release and redemption. Instead, it has the potential to increase the reach of the federal prison system via electronic monitoring and expanded home confinement, which is consistent with this administration’s efforts to increase the size of the federal prison population.
For those released from prison on credit time, an electronic shackle awaits, branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.
As with any for-profit industry, once privatization enters the market an agreement is made for the company to be guaranteed a certain level of profit margin. In order to profit from the FIRST STEP Act, these companies will be guaranteed a certain number of individuals to remain on electronic monitoring or home confinement, creating a bodies-for-sale system.
What’s more, this bill ensures that many people are excluded from eligibility to earn credit time. The FIRST STEP Act calls for the creation and implementation of a risk assessment instrument to determine who is worthy. Such assessments have been shown to perpetuate or exacerbate racial biases and institutionalize structural racism by relying on data such as “zip code” and “age at first arrest” — both signal over-policing of black people and communities of color, rather than risk of actual behavior.
Alarmingly, the FIRST STEP Act cedes responsibility for creating that risk assessment instrument to Attorney General Jeff Sessions, a man accused of being too racist to serve as a federal judge during the Reagan administration. In addition, the proposal serves his anti-immigrant, zero-tolerance stance by deliberately excluding immigrants and making it official policy for Immigration and Customs Enforcement (ICE) to coordinate with the Bureau of Prisons directly, to pick people pre-release.
Another misconception about the bill is the mandatory requirement to keep people within 500 miles of home. While the current Federal Bureau of Prisons policy contains this language in a discretionary form, FIRST STEP Act makes it mandatory. The problem with this mandate is that facilities are coded based on level of risk. If a person scores a level 1 and the closest facility is a level 2, they cannot be housed there. Changing this requirement to house low-level people within medium- to high-level facilities puts those individuals at risk and sets the Bureau of Prisons up for lawsuits.
There are some good aspects of this bill, including the prohibition of the abhorrent practice of shackling pregnant women in prison and the retroactive application of an increase in good-time credit from 47 to 54 days per year. Even with these positive provisions, the rest of this bill widens the net of systemic harm. The fact that this bill could move us a few inches forward is not nearly enough to mitigate the reality that the FIRST STEP Act is only a first step toward a devastating future.
We do not have a binary choice between the status quo and the FIRST STEP Act. To the contrary, the very real possibility of overhauling and wholly transforming our criminal justice system exists, and needs to be pursued with unmitigated and tireless vigor of the movements we are seeing in cities, counties and states across the country.
The need and demand for reform are real. The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system. We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.
DeAnna R. Hoskins is president and CEO of JustLeadershipUSA, a national, member-driven advocacy organization that seeks to cut the U.S. correctional population in half by 2030. She spent time in the State of Ohio’s correctional system, and previously served as a senior advisor at the Department of Justice and as the director of reentry for Hamilton County (Ohio) Board of County Commissioners.