In November, shortly after the 2018 midterm elections, President Donald Trump made a surprising announcement in which he publicly supported the FIRST STEP Act, the latest iteration of bipartisan legislation to reform federal sentencing laws and Federal Bureau of Prisons (BOP) policies. In the previous Congress, the Senate was on the verge of passing similar legislation—the Sentencing Reform and Corrections Act (SRCA)—which included more robust provisions to reduce mandatory minimum sentences. Those efforts, however, were stymied by Senate Majority Leader Mitch McConnell (R-KY), who refused to call a vote on the bill, allegedly for fear it would divide his caucus. Trump’s recent announcement was intended to show that the revised FIRST STEP Act had the full backing of the White House, thus putting pressure on congressional leaders to pass the bill before Congress adjourns. Yet within two days of the president’s speech, Sen. McConnell reportedly indicated that he would not allow a vote on the bill this year.
It remains to be seen how much political capital Trump will invest to back his endorsement of the FIRST STEP Act and push members of his own party to make the bill’s passage a priority in the lame-duck session. Without active involvement from the president, this legislation is unlikely to pass in the current or subsequent Congress. Other presidents have routinely lobbied for legislation that was a priority for them. But while the FIRST STEP Act may be important to members of the president’s staff—namely, his son-in-law and senior adviser, Jared Kushner—it is not important to the president himself.
In fact, Kushner has spent the past year trying to convince the president to support criminal justice reform legislation. Yet virtually all of the Trump administration’s criminal justice policies to date contradict the goals of the FIRST STEP Act. Instead of ensuring that sentences were just and proportional, for example, Trump’s recently removed attorney general, Jeff Sessions, deliberately changed Justice Department policy, instructing federal prosecutors to charge defendants with offenses that would yield the highest possible sentences. Sessions also reduced funding for halfway houses and terminated the BOP’s correctional education system, which was instituted under the Obama administration and embodied the type of vocational and rehabilitative anti-recidivism programming contemplated by the FIRST STEP Act.
These are just a few examples of the administration’s record to increase mass incarceration, which continues to disproportionately harm people of color. The president’s endorsement of the FIRST STEP Act is an outlier. Therefore, Congress must ensure that any criminal justice reform legislation passed during a Trump presidency compels the administration to reduce the number of people incarcerated and holds it accountable for fairly and effectively implementing reforms at the BOP.
The House and Senate versions of the FIRST STEP Act
The Center for American Progress initially withheld support for the FIRST STEP Act when it was considered and subsequently passed by the House earlier in 2018, even though the legislation contained a number of positive reforms. These included the prohibition of shackling incarcerated women who are pregnant; the expansion of compassionate release for the elderly, in addition to those who are terminally ill; and the requirement that incarcerated individuals be placed in facilities that are within 500 miles of their homes. Additionally, the bill fixes how the BOP calculates credits earned for good time, giving those eligible up to seven additional days per year that can be applied toward early release.
Unfortunately, amid the well-intentioned enthusiasm around the prospect of Congress passing bipartisan criminal justice reform in a divisive national environment, the drafters of the House bill seemingly focused only on the hurdle of passing legislation and failed to consider how the bill would actually be implemented by a Trump Justice Department. The House version would have blindly trusted the administration to create and implement a fair and effective system of anti-recidivism programs, even though the Justice Department aggressively advocated against the legislation. It would have given then-Attorney General Jeff Sessions—someone who perpetuated the falsehood that all of those incarcerated in the federal criminal justice system are serious offenders—substantial leeway to design a tool that assessed an incarcerated person’s risk of recidivating upon release. The House’s only oversight of the Justice Department would have been through mandated annual reports to Congress and a single Government Accountability Office study issued two years after the system was in place. Finally, the bill included no sentencing reforms that would check the Justice Department’s penchant for dealing with societal ills only through enforcement and incarceration.
The Senate version of the FIRST STEP Act addresses each of these concerns to varying degrees. It includes most of the sentencing reforms proposed by the SRCAs without adding any new mandatory minimum sentences or enhancements, though some provisions will not apply retroactively—a significant omission. The bill contains two particularly important sentencing reforms: 1) It expands a “safety valve” that would allow judges to sentence a larger number of defendants below the mandatory minimum in certain cases; and 2) It makes the Fair Sentencing Act (FSA) of 2010 retroactive. The FSA reduced the disparity between crack cocaine and powder cocaine offenses that would trigger higher criminal penalties from 100-to-1 to 18-to-1 but only applied the change prospectively. Under the Senate version of the FIRST STEP Act, those sentenced for crack cocaine offenses before the FSA’s enactment can also apply for sentence reductions. This change could potentially affect up to 3,000 individuals, while the safety valve expansion will prospectively benefit roughly 2,100 individuals annually.
Importantly, the Senate version of the FIRST STEP Act includes additional checks on the Department of Justice’s discretion when creating the BOP anti-recidivism assessment tool and programming. The bill establishes an Independent Review Committee—a nonpartisan group of at least six outside research experts on risk assessments and anti-recidivism programming in prisons, with whom the Justice Department must consult. This committee would also be responsible for ensuring that the risk assessment tool was scientifically validated so that it effectively places people at appropriate risk classification levels without disparities based on race or other demographic categories. In addition, the Senate bill removes a provision from the House version that would have given individual BOP wardens the discretion to deny a person’s early release to a halfway house even if that benefit was earned through the completion of prison programming. Such a provision would be unfair and defeat the purpose of a properly functioning risk assessment.
Now, as the incoming 116th Congress is poised to exert greater oversight over the Trump administration, these modest changes are likely to be strengthened even more.
The Senate version of the FIRST STEP Act, even with its changes, falls significantly short of the transformation needed to fix the federal criminal justice system. The bill does, however, amount to exactly what its title describes: a first step.
The Center for American Progress supports the Senate version of the FIRST STEP Act. Even if the bill is enacted, however, both the president and Congress must commit to ongoing actions in order to combat the administration’s “tough on crime” predisposition and ensure the legislation’s effectiveness:
- President Trump must nominate an attorney general who is committed to criminal justice reform and appoint a reform-minded BOP director who agrees with the goals of the FIRST STEP Act.
- The administration must propose in its budget and Congress must appropriate the full $75 million authorized by the legislation to create and implement the anti-recidivism system and other provisions in the bill.
- The Justice Department must administratively fix a transparency deficiency in the bill and make public on its website the BOP risk assessment tool, as well as the methods used to validate it.
These measures are crucial to bridging the gap between the administration’s platitudes around the FIRST STEP Act and its abysmal record on criminal justice reform. It is not enough for the president to engage Congress and push the FIRST STEP Act over the finish line. Trump’s words of support for the FIRST STEP Act are meaningless if his administration does not take tangible action to implement the bill with fidelity.
Ed Chung is the vice president for Criminal Justice Reform at the Center for American Progress.