Months before the U.S. Senate pushed through new legislation this week that steers the federal prison system in a slightly gentler direction, liberals and conservatives debated whether the First Step Act would live up to its name. Would there be a second step, or would this be an excuse to declare “mission accomplished?”
Its passage late Tuesday was widely hailed as the most significant criminal justice reform bill in nearly a decade. Yet while the bill should reduce the sentences of at least 9,000 federal prisoners and defendants next year, few supporters would say that its impact is anything but modest within the 180,000-prisoner federal system.
But just as important as the reductions in mandatory sentences for drug crimes, long-awaited relief for inmates skipped over by a crack sentencing revision eight years ago, and millions of dollars in new prison programs, the First Step Act’s widespread support in Congress and opinion polls demonstrates an appetite for more change, according to conservatives and liberals who joined forces to pass the measure.
“There’s going to be a second step and a third step,” said Mark Holden, general counsel for Koch Industries, who leads the Koch network’s criminal justice reform efforts. “There’s a lot more to do.”
The hope is that the First Step Act could put Congress on a path paved by several states in recent years, including red bastions like Texas, Louisiana and Georgia, in an effort to make prisons less crowded and more focused on rehabilitation.
One possible next target is an array of conspiracy statutes, which can transform low-level offenses into compound felonies.
Among the narratives that helped drive support for reducing mandatory minimum sentences was the case of Alice Johnson, a grandmother given a life sentence for being part of a conspiracy that committed nonviolent drug and money-laundering crimes. In June, after the advocacy of reality-television star Kim Kardashian, President Trump issued Johnson a pardon, and her story became an argument prisoner advocates pointed to for why drug sentences needed to be reduced.
Holden said now’s the time to examine how federal prosecutors charge people with conspiracy. Intent, he said, is a better way to determine a person’s culpability than simply their associations or their presence at drug houses or during raids.
“Let’s focus on the role of the individual in the alleged conspiracy,” he said.
Jessica Jackson Sloan, national director and co-founder of the nonprofit #cut50 advocacy group, said women like Johnson and Cindy Shank, the main subject in the HBO documentary “The Sentence” whose lengthy sentence for conspiracy was also used to push First Step Act reforms, are changing “the narrative of conspiracy.” She said she expects that they will continue to do so even more next year.
“A lot of women in particular get caught up in conspiracy charges because of a minor role,” she said.
Prisoner advocates also see momentum to overhaul the mysterious and subjective clemency and pardon process, saying the presidential power should be more widely applied on a uniform basis with the help of independent panels or commissions. A first step, they say, is moving the initial clemency petition screenings from the prosecutor-laden Department of Justice, which is where the Office of the Pardon Attorney is based.
“There’s a fundamental problem with having the pardon attorney housed in the Department of Justice, because they have a fundamental problem with ever claiming a mistake,” said David Safavian, deputy director of the right-leaning American Conservative Union Foundation's Center for Criminal Justice Reform.
Safavian also said Congress should do more to help former prisoners find work by removing obstacles, such as occupational license laws, that bar them from certain types of employment.
Pennsylvania, he said, offers a good example with its new Clean Slate Act, which lets people petition courts to seal criminal records if they have stayed crime-free over a certain length of time.
Some members of Congress expect to focus on assuring that the federal Bureau of Prisons complies with a raft of incentives and rehabilitation programming folded within the First Step Act. According to multiple Inspector General and Government Accounting Office reports, the agency has a long track record of failing to follow Congress’ intent on reform, as well as its own policies when it comes to sending prisoners to halfway houses, where they can get help transitioning back to society.
One way Congress can ensure compliance is making the bureau’s top position a presidential appointee, confirmed by the Senate, rather than appointed by the Attorney General. That idea has been pitched in an unsuccessful bill known as “The Federal Prisons Accountability Act,” and reform advocates want it resurrected.
Even if that change never occurs, supporters of the First Step Act say Trump should choose a reform-minded permanent attorney general and Bureau of Prisons director.
“The First Step Act should drive a narrative of how we look at prisons across the nation,” said the federal prison system’s former director, Mark Inch, who resigned after just eight months after he clashed with former Attorney General Jeff Sessions, a First Step Act opponent. “I would think the administration would be more judicious about selecting the next attorney general.”
That doesn’t seem likely, given the track record of the man Trump has selected to be the next Justice Department leader. William Barr oversaw the same agency during the early 1990s for President H.W. Bush, an era known for incarcerating thousands during the so-called War on Drugs.
Groups on the left compromised to pass the First Step Act, and Ed Chung, a vice president of the left-leaning nonprofit Center for American Progress, said they cannot allow the reforms that did pass to be ignored.
“If we have a compromise of a compromise, you have to have oversight to make it work,” he said.
A nonpartisan independent review committee that the First Step Act authorizes to help assess the risks of prisoners granted pre-release time will also be looked upon to keep the Bureau of Prisons accountable, as will the Judiciary Committee in the new Democratic-majority House.
Releasing elderly prisoners who are facing serious health issues is another area where the Bureau of Prisons has failed to follow the instructions of elected officials. Prisoner advocates want to see many more infirm prisoners released next year under a process known as compassionate release. On Tuesday, the Senate passed the “GRACE” Act, which allows prisoners eligible for compassionate release to petition federal court if they run into opposition from the Bureau of Prisons.
“Our legislation, which is now one step closer to becoming law, will create clear guidelines in the approval process so that we have more accountability in the system and the sick and elderly who qualify for compassionate release get it,” the bill’s sponsor Sen. Brian Schatz, a Democrat from Hawaii, said in a statement.