The First Step Act wasn’t a mistake — but criminal justice reformers dropped the ball

Five years ago this month, Donald Trump signed a major sentencing and prison reform bill into law. Known as the First Step Act, the law was wildly popular with Congress and the public, giving Trump a huge bipartisan legislative victory.

Today, the former president rarely talks about it. Recent reports reveal that Trump’s closest advisors are divided over whether he should run on the law — or run away from it.

What happened?

As someone who wrote anti-crime legislation as a congressional staffer, later served time in federal prison, and has spent the past 15 years working on criminal justice reform, I care deeply about this development. And while I have no special insight into former President Trump’s thinking, I know this: The substance of the First Step Act isn’t the problem.

The First Step Act has fulfilled its promise to improve public safety while reducing unnecessary incarceration. The law required the federal Bureau of Prisons to increase the quantity and quality of rehabilitative programming offered to people in prison. Low-risk prisoners who complete approved programming don’t get a sentence reduction, but they can earn the opportunity to serve more time at the end of their term in a halfway house or on electronic monitoring.

The First Step Act also made modest reforms to some of the worst “war on drugs”–era federal sentencing laws. One such law required federal judges to give 25-year sentence enhancements to people even if they hadn’t been convicted of a crime before. A judge appoint by George W. Bush complained the law required him to give a marijuana dealer more prison time than a terrorist or child rapist. This wasn’t tough on crime — it was stupid and unfair.

The unintended consequences of some of those old sentencing laws prompted conservatives like Sen. Mike Lee to work across the aisle to pass the First Step Act. Lee, along with Sen. Lindsey Graham and Sen. Chuck Grassley, encouraged Trump to sign it. Lee recalled telling the president, “You promised to make the American people safe, and this act is part of that promise.”

He was right.

Of the nearly 30,000 people released under the First Step Act, only 12 percent have been re-arrested or returned to federal custody. This is far lower than the usual recidivism rate for federal prisoners (43 percent), and even lower than the rate for similar low-risk people released before the act passed (20 percent) As its supporters predicted, the First Step Act is improving public safety while correcting old injustices.

If the law is working, what explains Trump’s hesitancy to embrace it? There are a few factors at play.

Just two years after the First Step Act passed, the country was shut down by the pandemic then convulsed by the murder of George Floyd and resulting protests, which directed attention to both societal racism and examples of police misconduct. These factors, along with others, contributed to a 30 percent spike in homicides, the largest one-year increase in modern history. Homicides rose again slightly in 2021.

Opponents of any criminal justice reform predictably seized on the homicide spike (and images of some racial justice protests that turned violent and destructive) to blame recently enacted reforms. Most critics didn’t even try to prove a connection between the two. Doing so would have been difficult, in part because crime rose all over the country, including in jurisdictions that didn’t pass any reforms.

Reformers were well-positioned to counter these fact-free attacks. Instead, we dropped the ball.

As violent crime spiked, we didn’t acknowledge reality. We seemed too often to minimize concerns about safety by pointing to even worse crime rates from 30 years ago. We had wisely urged policymakers not to rely so heavily on prisons, but then seemed increasingly unwilling to acknowledge that prison is ever necessary.

We had argued that police officers, like any other government actors, needed to be both well-resourced and held accountable to high professional standards. But we all got tagged by the few loud voices who argued the police were useless, or worse. Vilifying 700,000 valued public servants is not simply bad politics, it’s bad policy.

The First Step Act and many other reforms at the state level were achievable because we exposed aspects of our criminal justice system that were broken for all to see. We were for common sense. We must make clear that we still are.

Justice reform is not the problem. Commonsense reform is the answer. A justice system that solves only half of all murders and less than a third of all rapes is not maximizing public safety. That we divert billions of dollars in anti-crime spending away from preventing and solving serious crimes like these so that we can keep an increasingly elderly prison population locked up makes no sense.

Members of Congress from both parties understood that when they approved the First Step Act five years ago. We all should remember that today.

Kevin Ring is the vice president of criminal justice advocacy at Arnold Ventures, one of the largest funders of justice reform in the country. Previously, he worked as president of FAMM (formerly Families Against Mandatory Minimums), a federal lobbyist, and a congressional staffer.