People For the American Way

Flawed “FIRST STEP Act” Is a False Promise for Meaningful Criminal Justice Reform

People For in Action
Flawed “FIRST STEP Act” Is a False Promise for Meaningful Criminal Justice Reform

On May 9, the House Judiciary Committee approved the FIRST STEP Act, a flawed criminal justice “compromise” that addresses only “back-end” reforms to the prison system without meaningfully addressing policing and sentencing. People For the American Way and PFAW’s African American Ministers In Action agree that something must be done to relieve the harms of mass incarceration suffered by people of color and other demonized and criminalized communities, but we believe that “something” must amount to more than a false promise that does more harm than good. PFAW and AAMIA are among more than 100 allied organizations calling for a “no” vote on the House floor. You can download our floor letter here. Click here to view our earlier committee letter.

Dear Representative,

On behalf of The Leadership Conference on Civil and Human Rights, and the 109 undersigned organizations, we write to urge you to vote NO on The FIRST STEP Act (H.R.5682). While well intentioned, this bill takes a misguided approach to reforming our federal justice system. Without question, we appreciate the inclusion of some promising provisions to address some of the problems in the federal prison system,1 however, the Bureau of Prisons (BOP) already has broad authority to make the majority of these changes through administrative action. In sum, this bill falls short on its promise to “meaningfully” tackle the problems in the federal justice system—racial disparities, draconian mandatory minimum sentences, persistent overcrowding, lack of rehabilitation, and the exorbitant costs of incarceration. Decisions we make now through this bill could have deep implications for our ability to impact the abiding and deepening harms that lead to mass incarceration.

As such, we continue to have several, grave concerns with The FIRST STEP Act, including:

The Dangerous “Risk Assessment System”: The Act purports to offer people in prison the chance to “earn time credits” towards early release to pre-release custody– but by building and placing a “risk and needs assessment” algorithm in the hands of the Attorney General—one not required to be designed or tailored for the individuals it is meant to judge—we risk embedding deep racial and class bias into decisions that heavily impact the lives and futures of federal prisoners and their families.

Researchers have shown that risk assessment tools applied in sentencing decisions in Florida—meant to predict recidivism—were twice as likely to be wrong when evaluating Black people as White people.2 One of the first independent studies analyzing the use of risk assessment in pretrial showed that decisionmakers using risk assessment tools—in this case, Kentucky judges—ignored their results over time, while also overseeing an increase in failures-to-appear at court and an increase in pretrial arrests.3 A further recent analysis showed that risk assessment tools are as accurate as a prediction made by a random human selected over the Internet.4

We cannot introduce algorithmic risk assessment into the assignment of housing and release decisions or rehabilitative opportunities without sufficient transparency, independent testing for decarceral and anti-racist results prior to implementation, and regular effective oversight for not just what the tool purports to predict, but how decisionmakers in our prison system use it. The Act uses “risk assessments” in an untested manner.5 It fails to ensure transparency, independent testing, or analysis of the proposed risk assessment system or its results prior to its adoption or implementation. And again, it doesn’t require the tool to be designed or tailored for the individuals it is meant to judge.

Without these things, and in the hands of the nation’s most prominent proponent of a punishing, rather than a rehabilitative criminal justice system, “risk assessments” will further embed racism into the meting out of resources that could change prisoners’ lives—like access to treatment, work, and most importantly, the ability to earn time off of a sentence.

The Overbroad List of Exclusions: The majority of people in prison will eventually be released. Categorically excluding entire groups of people from receiving early-release credits6 will undermine efforts to reduce prison overcrowding and improve public safety since such exclusions weaken the incentive to participate in recidivism-reduction programming. Furthermore, many of these exclusions, such as those based on immigration-related offenses,7 could have a disproportionate impact on people of color.8

The Overbroad Discretion Provided to Attorney General Sessions: The bill gives broad authority to the Attorney General and would rely upon implementation by this administration.9 Despite assurances to the contrary, this administration has failed to take any active steps to improve the justice system, has dismantled existing protections, and has shown outright hostility to people of color and other historically marginalized communities.10 Furthermore, Attorney General Jeff Sessions is a well-known, longtime opponent of sentencing and prison reform. It would be unwise and harmful to vest so much discretion in an Attorney General so hostile to meaningful justice reform.

The Misplaced Incentive System: Effectively reducing recidivism requires targeting those most likely to reoffend with rehabilitative programming. Yet, under this bill, only “minimum” and “low-risk” prisoners would be able to redeem their earned time credits,11 and they would earn more credits than prisoners categorized as “medium” or “high-risk.”12 Given that time credits would also be subject to denial by the BOP warden13 and they are not real time off of a sentence but rather a flawed mechanism14 to transition into a decreasing number of halfway houses15 or to home confinement that is rarely used by BOP,16 the bill is unlikely to provide the incentives that would meaningfully reduce recidivism.

Allows for the privatization of certain public functions and allows private entities to profit from incarceration. The bill retains a provision that in order to expand programming and productive activities, the Attorney General shall develop policies for wardens of each BOP facility to enter into partnerships with private entities and industry-sponsored organizations.17

The Absence of Appropriations for Implementation: The resources needed to expand programming authorized under the bill have not been—and may never be—appropriated. In fact, Congress could decide today, absent this legislation, that prison programming should be funded and increase the BOP’s budget by $50 million a year for the next five years. Instead, the FY19 BOP budget calls for a reduction.18 Furthermore, the recidivism reduction programming that currently exists in the federal prison system is grossly underfunded and not enough to serve those currently incarcerated. Therefore, without any guarantees that the necessary funding will be appropriated, this bill is an empty promise.

The Undetermined Human and Fiscal Impact: It is unclear what the fiscal impact of this bill will be, given that the Congressional Budget Office has not released a score for the bill. Moreover, it is unclear what the human impact of this bill will be, given that neither the BOP nor the U.S. Sentencing Commission has produced updated estimates on the number of people projected to be impacted by the legislation. Proponents argue that at least 4,000 people will be impacted by the good time fix alone; however, relying on that number is misleading because it is based upon data that is over a decade old.19 No hearings have been held and there is no CBO score available in order to explore these questions further.

The Omission of Sentencing Reform: Sentencing reform and prison reform are both important, but one will not work without the other. Meaningful reform requires both. Furthermore, advancing prison reform as a stand-alone will undermine longstanding, bipartisan efforts in the Senate to advance a comprehensive justice reform package that includes sentencing reform.

Last week, we were joined by over 70 civil rights organizations in opposing this well-intentioned, but misguided legislation at the House Judiciary Committee markup.20 Many of our concerns were also shared by the American Federation of Government Employees representing 33,000 federal correctional workers in the Bureau of Prisons,21 as well as Representatives Lewis, Jackson Lee, and Senators Durbin, Booker, and Harris in a recent Dear Colleague letter.22 While we appreciate the inclination to support legislation that endeavors to reform our prison system, we believe that this particular bill would do more harm than good and would have unintended consequences that ripple into the future.

Finally, if presented with one choice, “to take what we can get now,” then we must ensure that “what we get” will not perpetuate the existing harms of mass incarceration or give false hope to the men and women languishing in prison and the communities we represent. Our communities are being demonized and criminalized so we must stand firm to resist the lure of a compromise that is ultimately a false promise that may never be realized and isn’t in their best interests.

For the foregoing reasons, we urge you to vote “No” on the FIRST STEP Act and The Leadership Conference will include your position on the bill in our voting scorecard for the 115th Congress. If you have any questions, please feel free to contact Sakira Cook, Senior Counsel at The Leadership Conference on Civil and Human Rights, at (202) 263-2894 or cook@civilrights.org.