Why the First Step Act shouldn’t be the last

The First Step Act, which passed the Senate Tuesday night and heads back to the House, is being touted as real criminal justice reform. While the bill makes some improvement to the federal system, it will not provide the kind of reform that will significantly alter the damaging effects of mass incarceration, which is why Human Rights Watch cannot endorse it.

Efforts to reform the 1980s mandatory minimum sentencing laws began more than 25 years ago. These laws were the cornerstones of the war on drugs, increasing average drug sentences because of the mandatory minimums and abolishing federal parole. The most egregious aspect of these laws were the provisions that required people convicted of possessing crack cocaine to get the same mandatory prison term as those convicted of possessing 100 times that amount in powder cocaine, leading to racial disparities and excessive sentencing in the federal criminal legal system.

{mosads}The 2010 Fair Sentencing Act (FSA)  reduced the disparity to 18 to 1. But it was the first and only repeal of a mandatory minimum sentence at the federal level. It did not eliminate the disparity and was not applied retroactively. At the time, Democrats and Republicans agreed something more needed to be done.

Eight years later, we are getting this “more” in the form of the First Step Act. But it is actually a half-step, at best; an amalgamation of the Sentencing Reform and Corrections Act (SRCA), passed twice by the Senate Judiciary Committee in successive Congresses and the original First Step Act, passed by the House this Congress.

In the last Congress, we opposed the SRCA compromise, because that was itself a compromise between the Smarter Sentencing Act, which would have cut drug mandatory minimum sentences in half, and the Corrections Act, which would have relied on problematic risk assessments, proven to be racially biased, to provide for early release.

On its merits, the First Step Act does provide retroactivity for reducing crack cocaine sentences. It increases judicial discretion for drug offenders who cooperate with the government. It reduces second- and third-strike penalties and eliminates “stacking” — adding multiple charges for the same offense. It codifies the Bureau of Prisons practices of not shackling pregnant women during childbirth, of keeping prisoners within 500 driving miles from home and providing an extra week of credit to be earned annually for good behavior. These changes represent some progress.

However, this bill provides no guarantee that its minimal reforms will benefit those most in need because it requires the Department of Justice and Bureau of Prisons, both currently leaderless, to follow through on the congressional intent. The incoming attorney general, the next prisons director, and nominees to the U.S. Sentencing Commission, which  carries out sentencing policy, would all need to agree to address mass incarceration in consequential ways.

The bill also includes many problematic provisions. President Donald Trump supports this bill in large part because it has a long list of exclusions in line with his tough-on-crime approach. In the bipartisan negotiations with the White House, additional sentencing reform provisions such as one that would have ended juvenile life without parole were eliminated. Amendments offered by Senate Republicans would, if adopted, further weaken the bill by excluding more people from reentry opportunities and ignores existence of victim notification laws. If the White House is serious about real reform, then it should commit to reverse efforts by recently departed attorney general Jeff Sessions to undermine progress in the criminal legal system.

The Smart on Crime initiative should be reinstated, directing prosecutors to improve proportionality and address racial disparities in charging practices. This would complement the few positive sentencing reform provisions in the First Step Act, allowing work on both the front and back ends of the system. If the White House does not do this, once the next attorney general is sworn in, then the 116th Congress should work to codify Smart on Crime and push for real mandatory minimum sentencing reform.

This bill, if passed, will impact tens of thousands of people over the next decade. But it will not impact nearly enough, nor will it address mass incarceration meaningfully for a prison system that has swelled 790 percent since 1980.  

One danger of enacting the First Step Act is that it may stymie the broader reform efforts that are needed. Lawmakers may feel they have actually passed meaningful reform when they have not. If the First Step Act does pass, lawmakers should ensure that the reform effort continues in the 116th Congress and beyond. It may have taken years to get to this point, but we cannot wait another eight years or more to address the needs of so many individuals and families who continue to suffer under the current system.

Jasmine L. Tyler is the U.S. advocacy director at Human Rights Watch.