Federal Criminal Justice Reform First Step Act is Not Enough

Interview with Marc Mauer, executive director of The Sentencing Project, conducted by Melinda Tuhus

On Dec. 21, President Trump signed the First Step Act, a modest criminal justice reform bill that passed with overwhelming bipartisan support. Groups and individuals on the right, like the Koch Brothers, and the left, including activist and author Van Jones, supported it out of a mixture of concern about the ballooning cost of incarceration and alarm that those in prison were simply being warehoused, with their humanity and potential for rehabilitation and contributions to society being ignored.
Jared Kushner, Trump’s son-in-law and senior counselor, pushed hard for the bill, motivated by the fact that his father served time in federal prison for corruption. Among the provisions in the bill are: reducing 4,000 prisoners’ sentences for good behavior; allowing more inmates to serve time under house arrest or in halfway houses; requiring that prisoners be incarcerated in locations no more than 500 miles from family members; prohibit the stacking of mandatory sentences for specific gun and drug offenses; and providing judges with more discretion to sentence defendants to less than mandatory minimum prison sentences for some low-level crimes.
The new law applies only to federal prisoners, who make up about one-tenth of the two million people behind bars in the U.S. Between The Lines’ Melinda Tuhus spoke with Marc Mauer, executive director of The Sentencing Project, who examines what the new law does – and doesn’t do.
MARC MAUER: We’re most encouraged by the sentencing reform part of the package that was put in place by the Senate leadership. One of the longstanding problems has been with the crack cocaine sentencing reform of 2010, which reduced the sentencing disparity between crack and powder cocaine, but was not made retroactive. So this bill will now apply to about 2,600 people serving crack cocaine sentences in the federal system who did not receive the previous benefits of that legislation. It will move up their release dates by two years or so. We know that more than 80 percent of the people serving crack sentences are African American; for powder cocaine they are much more likely to be white or Latino.

Other elements of the sentencing reform include a provision whereby previously the so-called three strikes and you’re out in the federal system meant that for a third drug offense you would get life without parole, which is rather shocking. Now it’s still going to be a very stiff sentence – it’s a mandatory minimum of 25 years, but clearly less than a life sentence also.

In addition to sentencing reform, there are provisions in the bill to expand programming in federal prisons and people who complete the program successfully can earn credits toward an earlier release to a halfway house as they get near the end of their sentence. Technically, you are able to be transferred to a halfway house 12 months before the expiration of your sentence – it has been the policy for quite some time. One of the many problems with it is there’s a severe shortage of halfway house beds, so most people who are able to transfer to a halfway house only benefit from having four to six months in a halfway house. So it’s a question of whether the BOP (Bureau of Prisons) can scale up the number of beds that are available in these halfway houses, and with the huge backlog they already have, that’s going to be a significant issue over the next several years.

BETWEEN THE LINES: One of the things in this new law is that pregnant women in federal prison can no longer be shackle, and that extends to a few months after giving birth. I was appalled that this is still going on in federal prisons. It also says women must be provided feminine hygiene products free of charge.

MARC MAUER: What century are we living in, right, that they’re just catching up with this now? It’s shameful that it’s taken federal legislation to make this happen, that it wouldn’t be just assumed that women in prison have the same needs as women on the outside. And, you know, the cost of making feminine products available to them is miniscule in the overall budget of the Bureau of Prisons, and it’s about time, and encouraging that it did get through in the bill.

BETWEEN THE LINES: New Haven, Connecticut, where I live, sees more than its share of people returning from prison being dropped off in the city with almost no money and no form of ID, which is a big impediment to getting their lives back on track. The new law provides for people to get an ID before leaving prison. Is that a big deal?

MARC MAUER: Yeah, it is. It’s something that most of us on the outside don’t think about, because we assume we have a driver’s license or another form of ID. But so many people in prison either had limited IDs before they went to prison, or now that they’re coming home, they’ve lost their paperwork somewhere along the line, and every step of the way, when it’s time to get a job or a place to live or other kinds of documentation, you need that ID. So something very simple like that make a very big difference in people’s prospects for successful re-entry when they’re coming home from prison.

BETWEEN THE LINES: Marc Mauer, the bill that passed and was signed by President Trump on Dec. 21 was a true bipartisan compromise, but that means that progressives didn’t get everything they wanted, right?

MARC MAUER: Well, the bill does make some important changes. Overall, it’s a relatively modest impact it’s likely to have on mass incarceration. Some of the elements that could have gone further: mandatory sentencing is widely condemned across the spectrum these days, so it made some modifications in mandatory sentences, but we still have a long way to go to really unpack that. A couple of compromises that came toward the end of the legislation are particularly unfortunate, and those are some of the sentencing reform changes that will only take effect prospectively, but not retroactively. So changing the three-strikes life (sentence) without parole for drug offenses; there’s another drug offense provision called the stacking offenses, which can lead to decades-long sentences for several crimes that may have happened within the course of a week or two – essentially part of a crime spree.

So, those laws were changed, but they won’t affect people in prison. So in each of those cases, we’re looking at probably dozens of people a year being positively affected, whereas hundreds of people sitting in federal prison today will not be affected by them. You know, it’s hard to explain to someone in the street why a person sentenced before the law passed should have a harsher prison term than someone sentenced after the law passed. You know, if we think this is a more fair and just sentence, why are we (not) still applying it to people who are already in federal prison?

For more information on The Sentencing Project, visit sentencingproject.org.

Join in on the commentary on Facebook or Twitter.

Subscribe to our Weekly Summary