Civil Liberties

Congress Passed the FIRST STEP Act. What's the Second Step?

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In the waning days of the 115th Congress, the first major criminal justice bill in eight years was passed. The FIRST STEP Act was both a modest achievement in terms of the bill's scope and a monumental victory merely because Congress did something. But what does the legislation that President Donald Trump signed actually say?

  • It requires the Bureau of Prisons to house inmates within 500 driving miles of their home when possible. Regular contact with family can be a significant factor in reducing recidivism among inmates, but families often have to travel long distances at great expense to see incarcerated loved ones.
  • It increases the amount of "good time" credits inmates can earn toward their release by avoiding disciplinary infractions, to a maximum of 54 days a year.
  • It increases the amount of "earned time" credit inmates can amass by participating in job training and rehabilitative programs. The credits count toward early release to a halfway house or home confinement.
  • It bans the shackling of pregnant female inmates. The Bureau of Prisons amended its policies in 2008 to forbid the practice, but there was no federal law against it. It's already illegal in most states, although incarcerated women still report being shackled while in labor, even where it's supposedly outlawed.

The FIRST STEP Act also made four changes to federal mandatory minimum sentencing laws—the first major reductions since the Fair Sentencing Act of 2010, which shrank the notorious sentencing disparity between crack cocaine and powder cocaine offenses.

  • It reduces the mandatory minimum sentences for repeat drug offenders under a draconian "three strikes" law. A third drug offense will now carry 25 years in federal prison rather than life. A second drug offense will be punishable by 15 years. Both state and federal felony drug offenses qualify a defendant for the enhancement.
  • It eliminates a provision that allowed gun charges to be "stacked" against drug offenders, which prosecutors have, in the past, used to add decades to sentences.
  • It expands judges' discretion under the so-called "safety valve" to depart from federal mandatory minimum sentencing laws for certain low-level offenders.
  • It makes the reductions to crack cocaine sentences under the Fair Sentencing Act apply retroactively. This will result in reduced sentences for approximately 3,000 crack cocaine offenders currently in federal prison.

Critics said the bill didn't go far enough. To placate law enforcement groups, for example, Congress retro-actively applied only one of the sentencing reforms. Despite caterwauling from Sen. Tom Cotton (R–Ark.) that it amounted to a "jailbreak" for dangerous criminals, the law leaves the federal architecture of mass incarceration largely in place.

But as its name implies, the FIRST STEP Act is intended as a stepping stone to larger reforms. Implementation was held up by the partial federal government shutdown that began just before Christmas and by small drafting errors in the bill's language, but it has already led to some injustices being corrected.

In early January, Matthew Charles was rereleased from federal prison under the retroactive sentencing reductions for crack cocaine offenses in the FIRST STEP Act. Charles' case drew national attention last year after he was sent back to prison following two years of freedom because of a sentencing error.

Charles was first released early in 2016, having served 21 years of a 35-year sentence for selling crack to a police informant. Although he had a serious criminal record prior to his sentencing, Charles was a model inmate who managed to put his life back together on the outside. Yet a federal appeals court ruled that, under the letter of the law, Charles should never have been released. In May 2018, he was reincarcerated.

Criminal justice advocates say Charles is the first person to have his sentence reduced under the new provisions of the FIRST STEP Act. The problem is that many more like him are still behind bars.

As the U.S. government admitted in a filing opposing Charles' first release (after he'd already been freed), the only difference between him and hundreds of other "career offenders" who show evidence of rehabilitation "is that the vast majority of these individuals are still incarcerated while Mr. Charles was released from prison and, thus, had the opportunity to interact with society outside of prison."

Congress should eliminate mandatory sentences like the one that kept Charles incarcerated, and it should continue to empty prisons of people like him.

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  1. It will be interesting to see what future criminal justice reform acts will look like. Will Congress have the votes to pass more sweeping criminal justice reform in the future?

    Senators like Tom Cotton need to be asked why they think America is such a rotten place that our country feels the need to incarcerate more people per capita than any other developed nation.

    1. Now that’s something that actually would make America great again.

    2. We incarcerate more people per capita than any country in the world. That would include places like Cuba. The second highest among big countries are Brazil/Russia which are half our rate. And it’s mostly because of our sentencing – and none of the reforms here actually affect that much.

      1. Hell – our most lenient state re incarceration rate (Vermont) has an incarceration rate that is comparable to Brazil/Russia. And we incarcerate a higher percent of our black population than South Africa did during apartheid.

      2. Imagine how many more we could incarcerate if we had stricter gun control laws.

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  2. Charles was first released early in 2016, having served 21 years of a 35-year sentence for selling crack to a police informant. Although he had a serious criminal record prior to his sentencing, Charles was a model inmate who managed to put his life back together on the outside. Yet a federal appeals court ruled that, under the letter of the law, Charles should never have been released. In May 2018, he was reincarcerated.

    jfc

    1. It is heartbreakingly sad.

  3. The danger of crack is that it does not assist in the transmission of HIV so valued by the mystical eugenecists tasked with writing laws that victimize individuals for victimless activity deemed undesirable by eugenics experts who know what’s good for the riff-raff. Hence the extra sentences to steer people toward death.

  4. IIRC, the second step is to tell her she’s the one you’re dreaming of.

    1. Third step is towards the door right? And you’ll never see the incarcerated no more.

    2. Second step is put your dick in the box.

      1. That must be from the rap version of the song.

  5. Second step is usually your left foot.

    1. So you were never in the military.

      1. or much of a dancer?

        1. Well, if we are talking about the Hokey-Pokey, then it is the left foot.

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  8. True but none of these reforms will work without a corresponding decrease in funding. Because as long as they have the capacity, they will just find new people to criminalize. In fact the reforms are unnecessary as long as funding is reduced. They will happen naturally.

    1. We could house inmates one per room. The NJ state psychiatric facilities kept the same rooms but recently reduced the number of patients from 1 per room to 2 per room. Having your own room when your fellow tenants might be dangerous makes it easier for you to focus on becoming a model citizen.

  9. Okay….. so what is the second step? I came here for the second step and found out that this is almost clickbait.

  10. 500 miles? Sounds like a CA and TX problem

  11. This is a good start to criminal justice reform.

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  13. And we expect Congress to fix anything? The list of previously stupendous accomplishments please…

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