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A prisoner at FCC Coleman in Florida. About 750 federal prisoners due to be released under the First Step Act could be deported.

First Step Offers Release for Some Prisoners—But Not Non-Citizens

About 750 federal inmates will be transferred to Immigration and Customs Enforcement custody starting in mid-July.

President Trump convened a news conference last week to celebrate the release of 3,000 federal prisoners on July 19 as part of the First Step Act. But not all of those inmates will actually walk free: 750 non-citizens could well face deportation.

It is one more example of the inflated hopes and modest reality of the First Step Act, which eases sentences for drug convictions, improves prison conditions and creates more job-skills training programs—but only in the federal system, which accounts for less than 10 percent of those incarcerated.

The 750 non-citizens released from federal prisons will be held for transfer to Immigration and Customs Enforcement custody so ICE can start the deportation process, according to the Bureau of Prisons.

While the Trump administration has pressed to increase deportations, there is ample precedent for non-citizens being released from prison, only to be ejected from the country. In 2015, during the Obama administration, more than 6,000 prisoners were released after the nonpartisan U.S. Sentencing Commission revised sentencing guidelines for some drug crimes. More than 20 percent of those released were sent to ICE to face deportation.

Tracking non-citizens who commit crimes increasingly became a federal priority since tough-on-crime policies were introduced in the mid-1980s and cooperation increased between law enforcement and ICE after 9/11.

Both liberals and conservatives harbored concerns about the First Step Act’s impact on non-citizens, but from different perspectives, said Joseph Luppino-Esposito, director of the Rule of Law Initiatives for the bipartisan Due Process Institute, who had lobbied Republicans in support of the act. Liberals were worried the law would be too harsh, while conservatives worried non-citizens with drug convictions would be set free. But changing policies toward non-citizens proved too loaded an issue to tackle in this bill, he said.

“These people did go through the (criminal justice) process, and this is sort of the accepted process,” he said. “Whether or not you agree with the status quo is another issue.”

About 35,000 people of foreign or unknown origin make up nearly 20 percent of all federal prisoners in Bureau of Prisons custody. People from Mexico constitute the largest population of non-citizens with prisoners born in Colombia, the Dominican Republic and Cuba as the next largest identifiable groups. The population has fallen slightly from March 2018, when about two-thirds of the immigrant prison population was undocumented, according to a federal report released in April.

Nearly half of foreign-born federal prisoners are incarcerated for drug trafficking or related offenses, while those convicted of immigration offenses such as illegal reentry after deportation make up 28 percent.

Once detained by ICE, those released from federal prisons can theoretically be released on bond, said Ricardo S. Martinez, a chief U.S. district judge and chair of a federal judicial committee that reviews criminal justice bills and laws. “But more likely they are held until they can be repatriated back to their country of origin,” he said.

Proponents of easing immigration policies say the push to change the federal prison system over the last several years stands in stark contrast to how immigrants fare in the criminal justice system. While the population of the federal prison system has declined over the past few years even as the nation’s crime rate has remained low, the proportion of non-citizens convicted of federal crimes has increased due to more aggressive prosecutions of immigration crimes.

According to the U.S. Sentencing Commission, the number of non-citizens sentenced annually for immigration crimes is nearly five times what it was in 1996. In 2018, nearly 24,000 people were convicted of immigration crimes.

“We’ve got this tough-on-crime era legislation passed in 1996, and we are revisiting the errors of the past and the recognition that that approach didn’t really lead to true public safety or rehabilitation,” said Rose Cahn, criminal and immigrant justice attorney for the Immigrant Legal Resource Center. “But the federal immigration law hasn’t changed, and increasingly we are having a mismatch between the severity of a criminal conviction and the immigration impact of that.”