By Oliver Fredrickson

On December 21, 2018, after significant debate in both the House of Representatives and the Senate, President Trump signed the First Step Act into law. Despite falling short of what many criminal justice reformers were anticipating, commentators say that the First Step Act will deliver “the most significant changes to the criminal justice system for a generation.”

Background

Most of us know that the United States has, both per capita and in total numbers, the highest prison population in the world. To emphasise just how far the United States exceeds the rest of the world when it comes to incarceration, take note of the following statistics:

• The United States has the highest incarceration rate in the world with 737 per 100,000 individuals currently incarcerated. The next five countries are El Salvador, Turkmenistan, Thailand, Cuba and Rwanda.
• The United States has 2,193,798 individuals incarcerated. Despite having less than 5% of the world’s total population, the United States houses almost 25% of all incarcerated individuals in the world.
• According to a 2018 report issued by Federal Prisons Bureau, it costs $34,704.12 per year to house an individual in federal prison. That amounts to $94.82 per day. In total, the United States spends $60 billion annually on state and federal prisons.
• In 2018, only 54% of incarcerated individuals were convicted of a violent offense.

What is perhaps more shocking than the pure statistics above is how quickly these figures have become out of hand. Flashback to 1980, the incarceration rate in the United States sat at 220 per 100,000 individuals, a number that would today place 60^th worldwide, in between New Zealand and Chile. However, by 1981, Ronald Reagan had won a presidential election with the hallmark promise to get ‘tough on crime’ and launch a ‘war on drugs.’

He did just that; his administration passed a slew of regressive criminal justice reforms that significantly inflated the prison population. Most notable were the Sentencing Reform Act of 1984, which imposed mandatory minimum sentences, and the Anti-Drug Abuse Act of 1986, which instituted mandatory minimum sentences for drug-related offenses. By 2008, the nation’s incarceration rate had increased by 343%.

For more background on prison reform in the United States, see 3L Meagan Nettles’ recently published law review article, The Sobering Failure of America’s ‘War on Drugs’: Free the P.O.W.s.

The First Step Act 

With this backdrop, significant support has arisen to stop this mass incarceration and instead look to develop the criminal justice system beyond a hyper-reliance on prisons. In a strange development, the perspectives of progressive Democrats, libertarians, evangelical Republicans, and most surprisingly Donald Trump converged together in favour of criminal justice reform, although for starkly different reasons. 

Criminal justice reform has long been a priority for Democrats, as they overtly condemn the unconscionably high and largely inequitable prison population. Unsurprisingly, reducing the swelling prison population is also favoured by libertarian Republicans seeking to minimise government spending. Furthermore, the genuine evangelicals within the Republican party (yes, they exist) supported the First Step Act due to its focus on providing prisoners a second chance to rectify their lives.  

Finally, President Trump, who campaigned on a ‘tough on crime’ platform, was significantly influenced by his son-in-law-turned-Policy-Advisor Jared Kushner. Kushner’s father spent 14 months in a federal prison for illegal campaign contributions, tax evasion and witness tampering. His father’s stint in prison perfectly coincided with his recent interest in criminal justice reform, and Kushner ended up being a key actor in bringing the First Step Act to life. 

First Step Act provisions

Although many members of Congress are touting this bill as a “historic” development, the First Step Act is, as you may expect, merely a first step. The primary limitation of the First Step Act is that it only applies to federal prisoners. At present, around 181,000 individuals are currently incarcerated in federal prison, less than 10% of the 2.1 million total individuals currently housed in prison and jails across the United States. Although it will make a significant and material difference to the lives of thousands of incarcerated people, it will do little to combat the United States’ mass incarceration problem.

In effect, the First Step Act makes a number of small but important changes. Among other things, the First Step Act will:

• Retroactively apply the reforms of the Fair Sentencing Act of 2010.  Most notably, it will remove the racially motivated sentencing disparity between crack cocaine (predominantly used by African Americans) and powder cocaine (predominantly used by whites). This will immediately reduce the prison sentence of nearly 2,600 prisoners already incarcerated for crack-related offenses.
• Reduce the force of mandatory minimum sentences in federal courts, as judges will be given greater discretion in enforcing minimum sentences. 
• Ease the federal three strikes law to impose an automatic 25-year sentence, rather than life sentence, for third-time offenders. 
• Increase the “good time credits” available to inmates from 47 days per year to 54 days per year. Most importantly, this change will occur retroactively, which could allow as many as 4,000 prisoners to qualify for release the day the First Step Act comes into effect.
• Allow inmates to gain “earned time credits” by participating in vocational and rehabilitative programs. These credits will allow inmates to be released early to halfway houses or home detention.
• Improve dignity for women by banning the shackling of pregnant women and extending those protections to three months after her pregnancy. In addition, the bill requires that the Bureau of Prisons provide sanitary napkins and tampons to incarcerated women at no cost.
• Expand compassionate releases by reducing the minimum age of prisoner eligibility for elderly release from 65 years of age to 60 years of age, and minimum time served of prisoner eligibility for elderly release from 75% to 2/3.
• Provide ID’s to outgoing federal prisoners to allow for quicker integration and minimise the collateral consequences of incarceration. 

Where to go from here?

Despite endorsing the First Step Act for the progress it made, some politicians, commentators and activists also criticised the Act for not going far enough. Specifically, California Senator Kamala Harris characterised the Act as a “compromise of compromise,” arguing that all the sentencing reforms incorporated within the Act should be applied retroactively. Similarly, Vermont Senator Bernie Sanders argued that the government should end cash bails, private prisons and mandatory minimums. Other commentators criticised the First Step Act for failing to restore voting rights or combat job discrimination post-incarceration. 

Despite these criticisms, it is undeniably encouraging to see bipartisan support for criminal justice reform. Such reform is long overdue and the First Step Act will have a profound, material impact on the lives of thousands of incarcerated individuals. With an ambitious and energised Democratic majority taking over the House of Representatives earlier this month, here’s hoping we don’t have to wait too long for the all-important next step. 

Oliver Fredrickson, 3L, was a visiting student at California Western in Fall 2018. He is currently completing his legal education at Victoria University of Wellington (New Zealand).