What Is the First Step Act?

By Attorney Marc J. Victor

What is the First Step Act? The First Step Act is legislation that President Trump signed into law.  Although this is a step in the right direction, it’s important to note that this law will only affect those who are in the Federal System of roughly 181,000 inmates, which makes up only a small percentage of our over 2.1 million total prison population.

This legislation is one of the most significant criminal justice reform laws at the federal level in years, and it passed with overwhelming bipartisan support from both Republicans and Democrats. The law will give the opportunity for thousands of inmates to be granted early release, as well as cut future prison sentences.

The major provisions of the First Step Act include:

• Retroactive reforms enacted by the Fair Sentencing Act of 2010. This Act reduced the disparity between powder and crack cocaine sentences at the Federal level. This change will affect nearly 2,600 inmates, according to the Marshall Project.
• The easing of mandatory minimum sentencing under Federal Law. This will allow judges more discretion when sentencing people to prison.
• It also eases the “three strikes” rule for people who have three or more convictions, lowering the current life conviction down to 25 years.
• In addition, it also restricts the stacking of certain offenses, such as gun and drug charges that would add decades of prison time.
• It increases “good time credits” for inmates who have a clean disciplinary record while in prison. This increase will take the current credit from 47 days to 54 days, allowing well-behaved inmates to cut their sentences by one week per year. Since this change will be retroactive, it is estimated that as many as 4,000 prisoners could qualify for early release.
• The law also allows inmates to receive “earned time credits” if they participate in rehabilitative and vocational programs. By earning these credits inmates can be released early to halfway houses or home confinement. By participating in these programs, it will reduce the recidivism rate as well as prison overcrowding. The result will be a reduction in crime and incarceration rates in the long term.

But, since the system will use an algorithm to determine who will be able to redeem these credits, not every inmate will benefit. For example, higher-risk inmates will be excluded from using these credits until their risk level is lowered. The problem with using an algorithm-based system is that actually perpetuates already deeply embedded race and class disparities, since an algorithm may exclude an inmate from earning credit because of their previous criminal history. Also, certain inmates such as illegal immigrants and high-level offenders would be excluded from earning credits.

There are other changes that are aimed at improving prison conditions as well, such as, banning the shackling of female inmates during childbirth and requiring that inmates be placed closer to their families.

Prison reform at the Federal level is something that has been needed for some time now, but it’s important to point out that there is nothing in this legislation that is particularly groundbreaking when compared to state-level reforms that have passed in recent years. These reforms have included reduced prison sentences, defelonization of drug offenses, and marijuana legalization. This is why the law is named “the First Step” and it’s a step that has been needed for a while now. Although any step in the right direction is a good step, the reality is, this will have very little effect on our prison incarceration problem. So, even though there will be a few more people released from prison early, there are already approximately 1,700 people released from our prison system daily.

If we really want true reform, we need to end the war on drugs which incarcerates people of all racial and economic backgrounds. Ending the war on drugs would do more for prison reform than the First Step Act or any other bills that simply tinker with reform. We will never have true reform until we end the drug war once and for all!

In addition, the first step plan only deals with the Federal Prison System, which is a fraction of the overall criminal justice system. Since 87 percent of the prison population is in a state facility, and a lot of those for violent crimes, not drug-related, this will do little to make an impact on our prison population. To put this in perspective, even if we pardoned every person currently serving in Federal prison, it would take our prison population from 2.1 million to 1.9 million. Even with that, except for El Salvador, the United States would still lead the world in the prison population.

Not to downplay the progress in this first step, but if we are going to make any real progress in criminal justice reform, we must address the drug war at the Federal, state, and local levels as well.