First the facts. America is in the midst of a mass incarceration epidemic. And most of the people being incarcerated look like The Michigan Chronicle’s readers, family members and other people of color.
As the ACLU has tragically noted de-spite making up close to 5% of the global population, the U.S. has nearly 25% of the world’s prison population. Since 1970, our incarcerated population has increased by 700% – 2.3 million people in jail and prison today, far outpacing population growth and crime. (https://www.aclu.org/issues/smart-justice/mass-incarceration)
In fact, the organization points out that one out of every three Black boys born today can expect to go to prison in his lifetime, as can one of every six Latino boys—compared to one of every 17 white boys. At the same time, women are the fastest growing incarcerated population in the United States. (https://www.aclu.org/issues/smart-justice/mass-incarceration)
So, while politicians of both political parties, television commentators and other talking heads celebrate the pas-sage and signing last week of the bipartisan criminal reform law called “The First Step Act,” it is important that the bill is put in its proper perspective. Especially for people of color, who are the most impacted by such legislation.
Simply put, the First Step Act would expand job training and other program-ming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.
(https://www.judiciary.senate.gov/imo/media/doc/115.Sxxx%20REVISED%20First%20Step%20Act%20of%2020181.pdf)
So, what does that mean on a practical level for people who are incarcerated or have loved ones who are?
Marc Mauer, is the executive director of the Washington, D.C.-based Sentencing Project, one of the nation’s leading criminal justice reform advocacy organizations. His group worked closely with Congress in drafting and passing the legislation. He said although it might be understandable for those most affected by the scourge of mass incarceration to be skeptical, about another bill claiming to ease the burden of this policy on people of color and the poor, The First Step Act is a significant accomplishment.
“This is not going to end mass incarceration,” he said. “This is modest progress. We have a lot more to do. But at the same time, it still is a significant piece of legislation nonetheless.“
Mauer said the symbolism of a right-wing Congress and president, join a racially, ethnically, religious, politically and ideologically diverse coalition of people to advocate for criminal justice reform cannot be dismissed.
“The fact is we had a conservative Congress and law and order president come together to support sentencing reform that will largely benefit people of color.
“In practical terms, the number of people affected is not trivial,” he said. “For starts, the bill makes retroactive the crack cocaine sentencing reform of 2010. So that’s 2,600 people who will now benefit from having their sentences reduced about two years on average. And as we know about 80 percent of that group are African American.”
Another provision will affect the federal three strikes law under which a third drug offense will currently get you a mandatory life sentence with-out parole. Under the new law, that is changed to a mandatory minimum of 25 years in prison.
“Which is still a very long sentence, but much less than life,” Mauer said.
Both of Michigan’s Democratic senators supported the bill. U.S. Sen. Debbie Stabenow said in a statement to the Michigan Chronicle that the First Step Act takes the first step towards reforming and modernizing our criminal jus-tice system. “While there is still much more work to be done to ensure fairness and justice for all Americans, this bill is an important step in the right direction and I voted for it in the Senate.”
U.S. Sen. Gary Peters agreed. In an email to the Michigan Chronicle he said the nation’s criminal justice system is long overdue for serious changes and reforms and in too many instances in Michigan and across the country, our current system has not treated every American equally under the law – and that has eroded faith in our institutions.
“This legislation takes important steps to reduce prison overcrowding and recidivism so that in-mates can return to society after completing their sentences – all while saving taxpayer dollars. I look forward to building on this progress and more closely examining ways to create a more just system for all,” he said.
According to the #FirstStepAct website, other provisions included in the bill are:
- Fix Good Time Cred-its ensuring that incarcerated individuals can earn the 54 days of good time credit per year, and not just the 47 days that BOP currently allows. This retroactively applies to everyone in federal prison who has earned credit for good behavior.
- Major incentives for participating in programs, allowing for 10 days in pre-release custody for every 30 days of successful participation, with no cap on the prerelease credit that can be earned.
- Availability of prerelease custody by requiring the BOP to transfer low and minimum risk prisoners to prerelease custody—either a half-way house or home confinement.
- Creation and expansion of life-changing class-es by authorizing $250 million over five years to the BOP for the development and expansion of programming focused on skill-building, education and vocational training.
- Prioritize people inside who need it most because evidence shows that individuals who are at the greatest risk of future crime are the most in need of treatment, classes, and counseling.
- Move people closer to home because contact with family is one of the most important aspects that will help individuals reintegrate into society successfully.
- Dignity for women by banning the shackling of pregnant women and ex-tending those protections to three months after her pregnancy. In addition, the bill requires that Bureau of Prisons provide sanitary napkins and tampons to incarcerated women at no cost.
- Provide IDs to ensure that individuals leaving federal prison have their ID prior to their release.
- Expand Compassionate release by reducing the minimum age of prisoner eligibility for elderly re-lease from 65 years of age to 60 years of age, and minimum time served of prisoner eligibility for elderly release from 75% to 2/3.
Judges will also now have greater discretion to use the “safety valve” which allows them to avoid imposing a mandatory sentence if they believe the defendant is not a major player in the drug trade. Studies have shown that our prison system cost taxpayers $80 billion a year. So, criminal justice reform and sentencing reform, in particular, is not only a moral imperative but a fiduciary one too. Which, in fact, explains much of the conservative support for this particular effort.
The money saved by such reform could be much more wisely be invested in building up communities from where many of the incarcerated emerge and eventually will return. That said, legal scholars may very well be the basis of the “Second Step” in meaningful criminal justice reform.
“It was the first step and I hope not the last step in criminal justice reform and sentencing reform,” said Joshua Dressler, a professor of Criminal Law and Procedure at the Moritz College of Law at The Ohio State University.
“It is a good step but obviously much, much, more needs to be done.” Dressler however, expects any next step to be even more difficult to achieve than the multi-year effort that resulted in the First Step Act. “It’s very difficult to get legislators to pass a law that can be interpreted as soft on crime,” he said. “I can’t say I’m optimistic about there being a “second step any time soon, but I’m pleased we got this first step.”
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