First Step Act Has Sinister Implications for the Poor and Marginalized
night.
Chip Somodevilla / Getty Images
By Candice Bernd, Truthout Published December 19, 2018
The Senate passed the First Step Act on Tuesday night in an 87-12 vote after
vigorous debate over legislative amendments that would have gutted much of
the bill. The legislation now moves to the House for a vote later this week,
where it is expected to pass.
The sentencing reform legislation, shaped in large part by Jared Kushner and
Koch Industries attorney Mark Holden, expands job training and other
rehabilitation-oriented programming designed to reduce recidivism rates
among federal prisoners deemed "low-risk." It also expands early-release
programs and somewhat reins in sentencing laws, including mandatory minimums
for drug offenses.
The legislation's changes to sentencing laws include allowing judges more
flexibility to pass sentences below mandatory minimums for nonviolent drug
offenders and reducing mandatory minimums associated with the three-strikes
law. The legislation also prohibits the shackling of pregnant prisoners and
the use of solitary confinement for juveniles.
The latest version, which came to the Senate floor via another, unrelated
bill, advanced Monday with stripped-down provisions and additional measures
demanded by law enforcement groups, including the National Sheriff's
Association and "tough-on-crime" Republicans.
Senators voted against a set of amendments to the bill Tuesday that reform
advocates deemed "poison pill" amendments ahead of the legislation's
passage. Republican Senators Tom Cotton and John Kennedy authored three
amendments that advocates say would have unacceptably whittled down the
already feeble legislation.
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The amendments would have excluded felons from early release, prerelease
custody and supervised release; notified victims before a prisoner is
allowed to transfer out early; and tracked the effectiveness of the
anti-recidivism programs. Advocates, however, say the amendments would have
led to further stigmatization of incarcerated people, risked re-traumatizing
victims of crime, and discouraged the neediest prisoners from participating
in recidivism-reduction programming.
In a stunning reversal, Senate Majority Leader Mitch McConnell indicated
last week that he would bring the bill to the Senate floor after Senate
Judiciary Committee Chairman Chuck Grassley expressed frustration over
McConnell's inaction. President Trump, the Fraternal Order of the Police,
and for-profit prison corporations GEO Group and CoreCivic all support the
legislation.
"We can look at this legislation as immediate relief for a very small number
of people, but what are [Black and Brown] communities going to look like in
20 years?"
Some conservative senators are already touting the bill's passage in the
Senate as a legislative victory after Congress's previous effort at
bipartisan prison reform in the wake of the Ferguson uprising in 2014-15
largely stalled. Others, like Senators Cotton and Kennedy, have decried the
bill as weakening the Republican Party's "law-and-order" identity.
The bill is limited to federal prisons, which only constitute about 13
percent of the overall US prison system, or about 180,000 of 2.1 million
incarcerated people in US jails and prisons. Further, prison reform
advocates argue the bill systematically excludes casualties of the war on
drugs, since the legislation does not make any sentence reductions
retroactive other than those under the 2010 Fair Sentencing Act, which
somewhat reduced the disparity between crack and powdered cocaine sentences.
The legislation could liberate several thousand prisoners hit with harsh
drug sentences prior to the 2010 Fair Sentencing Act, and represents the
most significant blow to mandatory minimums since the 2010 legislation was
passed.
Still, the modest sentence reductions in the bill are so narrow that veteran
reform advocates say the long-term, harmful provisions of the legislation -
including its reliance on racist risk assessment mechanisms and expansion of
electronic monitoring and other forms of privatized surveillance - outweigh
its benefits. For instance, the bill contains no measures that would prevent
private prison corporations from charging those they place on electronic
monitors from paying fees associated with the devices.
"It's important for us to focus on the long-term impacts of any legislation
that we put in place," said Vivian Nixon, a formerly incarcerated person and
director of College and Community Fellowship. "We can look at this
legislation as immediate relief for a very small number of people, but what
are [Black and Brown] communities going to look like in 20 years when .
there's a huge percentage of people with criminal justice histories in very
targeted, under-resourced communities who are bogged down with these
electronic monitors and payments that they can't make?"
CoreCivic and GEO Group, the nation's largest for-profit prison
corporations, strongly back the bill, and have urged representatives not to
adjourn before passing it. Both companies are expanding heavily into reentry
and post-prison rehabilitation services, and the legislation presents new
opportunities to boost their profits, authorizing a $375 million expansion
of post-prison services. Moreover, Koch Industries, whose attorney Holden
helped shape First Step, has worked to privatize reentry services through
funding the Texas Public Policy Foundation's "Right on Crime" operation.
"This is like a 'Get Out of Jail Free' card for extremely low-risk,
well-resourced people who find their way into federal prison."
Nixon points out that because of the way risk assessments measure static
factors like a person's income, work history or where they lived at the time
of their offense, many poor people of color will not even be eligible for
early release under electronic monitoring, while those deemed low-risk, such
as white-collar criminals, will likely be able to go free without any
electronic surveillance. "This is like a 'Get Out of Jail Free' card for
extremely low-risk, well-resourced people who find their way into federal
prison," Nixon said.
Moreover, she worries that the bill sets a precedent for expanding
"e-carceration" strategies that could spread beyond the federal prison
system. "Whatever the federal system does, there are many states [that] are
likely to follow suit, which means we're not only talking about the small
number of federal prisoners, we're talking about 2 million people in jails
and prisons around the country," she said.
Nixon argues the bill was conceived of and drafted predominantly by
"grasstops" nonprofit staffers, lawyers and people in government, not the
communities of color most directly impacted by policing and the prison
system. Further, the bill's prioritizing of low-risk, well-resourced
prisoners is a reflection of Kushner's familial experiences with the prison
system: His father Charles was released from prison in 2006 after serving
two years for illegal campaign contributions.
A real reform bill, she says, would have made the 2015 Sentencing Reform and
Corrections Act retroactive, focused less on risk assessments and more on
"needs assessments" to provide adequate programming for incarcerated people,
and would have included provisions to limit public-private partnerships.
"What is in this federal bill that says we will not double the current
federal population on community supervision?"
DeAnna Hoskins, president of JustLeadershipUSA, which seeks to reduce the
carceral population in the US, agrees, telling Truthout that static factors
disproportionately affect risk assessments for Black and Brown communities.
For instance, over-policing of predominantly Black and Brown schools can
result in early criminal records for young people of color. Criminal records
resulting from civil rights violations such as stop-and-frisk and racial
profiling can, and often do, play into risk assessments.
"What is in this federal bill that says we will not double the current
federal population on community supervision, especially when the cost is
shifted from the government to the individual?" Hoskins said.
She also points out that it's not just casualties of the war on drugs who
are systematically carved out of the bill, but also prisoners with many
disabilities, since the bill only outlines screenings for prisoners with
learning or cognitive impairments. The bill also carves out undocumented
immigrants, who constituted more than half of federal criminal prosecutions
in 2016 and make up about a third of all people sent to federal prisons
annually.
"I think what will happen at the end of the day is that the arc of all these
exclusions will kind of cement these problematic policies around
immigrants."
Paromita Shah, who is associate director at the National Immigration Project
of the National Lawyers Guild, argues that the way the legislation singles
out migrants' unauthorized reentry into the US as one of the most serious
classes of offenses is troubling, and that the legislation gives the
administration the tools to exacerbate the problems caused by the
administration's "zero tolerance" policy, which has led to separations of
thousands of migrant families at the border.
"If you're an immigrant, the presumption under our laws is that,
[immigrants] shouldn't have access to these [rehabilitation] services
because [they're] just not going to be here," Shah told Truthout. "I think
what will happen at the end of the day is that the arc of all these
exclusions will kind of cement these problematic policies around
immigrants."
She also points out that the legislation funnels anyone presumed to be
"deportable" into what's known as the "Institutional Hearing Program," which
holds deportation hearings for immigrants while they are still in federal
prison. Shah says the program undermines due process protections and remains
inaccessible in many federal prisons. The legislation forces people to
undergo the program as a condition for applying for time credits, ultimately
pushing more immigrants toward the likelihood of deportation.
The Trump administration's draconian immigration policies have also proved
lucrative to these private prison profiteers as well, and Shah worries the
bill will likewise only further cement GEO Group and CoreCivic's ability to
profit from the federal detention system in how it singles out unauthorized
reentry.
"There may not be an immediate impact right now, but I feel like it's a
tradeoff," Shah said. "Pushing out a bill like this while federal
prosecutions of [unauthorized reentries] remain one of the highest
prosecuted offenses in our criminal justice system, it just seems like a
real disconnect."
Nixon, Hoskins and Shah all hope to see Democrats take a shot at deepening
reforms the Senate just passed, while putting accountability measures in
place, when they take control of the House in January.
"It's just a baby step. If they want a true first step," Hoskins says,
Congress would have had a real debate. "If this is true bipartisanship, then
what are [lawmakers] scared of, and why the need to push this bill through?
Because it protects them, [white-collar criminals] and not the most
marginalized."
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