The FIRST STEP Act (FSA) is a national, bipartisan piece of legislation that passed the Senate last night, in a vote of 87 to 12. It is expected to become law. In today’s divisive, hyper-partisan political landscape, the FSA is an act full of unexpected compromises. It contains some truly positive steps forward, but it also contains dangerous provisions that have the potential to further harm the communities most impacted by mass incarceration, and further entrench wealth and race-based inequities.
SCHR has long been committed to ending the criminalization of race, and supported the federal reform in 2010 to end the sentencing disparity between crack and powder cocaine. A big problem with the implementation of that reform — which the FSA will fix — is that the reforms were not retroactive, meaning thousands of people were unable to benefit from the change. If passed, the FSA would make those reforms retroactive, and reduce the sentences of about 2,500 people.
The FSA would also take steps towards easing harsh mandatory minimum sentencing under federal law. The law would expand the use of a “safety valve” which allows judges to use their discretion to skirt mandatory sentences and would change the “three strikes” rule, so that people with three or more convictions (including non-violent drug charges) will receive an automatic 25 years, instead of life. Further, some felony drug charges that currently result in an automatic 20 year sentences would be reduced to 15 years.
The FSA also includes provisions to protect the dignity of incarcerated women. The bill would ensure that pregnant women are never shackled during childbirth or post-partum recovery. It also mandates that federal prisons offer free feminine hygiene products; products that are currently prohibitively expensive for many incarcerated women. Currently, women without means are often forced to choose between buying feminine hygiene products and calling their families. The FSA would also require the Bureau of Prisons to place people closer to their homes and ensure people are matched with appropriate rehabilitative services.
The bill also modestly increases the amount of “good time” credits that incarcerated people can earn. The good news is that the change would be retroactive, which would mean that (potentially) thousands of people would qualify for earned release the day the bill goes into effect. The bad news: the good time credits don’t apply to immigrants. The worse news: in order to qualify for good time credit, prisons will be using algorithmic risk assessments. These risk assessments determine someone’s risk factor based on a number of factors including their criminal histories.
We know at the Southern Center that these risk assessments do not take into account the over-policing of black and brown communities or the criminalization of poverty. As The Movement for Black Lives points out in their nuanced opposition to the FSA, the risk assessments will be “using criteria that fails to meet even basic Americans with Disabilities Act standards.” There is good reason to believe that these risk assessments will create more barriers to early release and further marginalize people with disabilities. It bears repeating: risk assessments based on factors like criminal history, educational background and other demographic considerations pose a real danger of more deeply entrenching institutionalized patterns of racial bias and wealth-based detention.
Also, of concern is that the bill mandates the use of electronic monitoring for the people who have been deemed eligible for early release. The expansion of surveillance practices, which advance the profit agendas of companies who seek to benefit from caging and keeping people under correctional control, is something that SCHR will continue to monitor closely.
Because the FSA applies only to the federal prison system, the potential impact of its passage will be minimal. There are roughly 181,000 people incarcerated in federal prisons, a modest – but important – fraction of the more than two million people in local jails and state prisons. In Georgia, of the more than 102,000 people incarcerated, the FSA will apply only to the approximate 7,900 people being held in federal prisons in this state.
The FIRST STEP Act is just that: a first step. Because the passage of FSA would mean that some people incarcerated in our federal prisons would receive lighter sentences and some dignities for incarcerated women would be restored, SCHR is endorsing it. But we know how important it is to support this bill with clear eyes, and we will continue to sound the alarm on aspects of the FSA that have the potential to further harm individuals, families, and communities. Most importantly, we are committed to ensuring that the work doesn’t stop at the FIRST STEP.