Let's Not Overstate How Good the Criminal Justice Bill Is

The First Step Act—a much-hyped criminal justice reform bill—got one step closer to passage last night, as the Senate voted 87-12 to send it to the House (over the objections of some Republicans, like Tom Cotton, who thought it wasn’t horrible enough). President Donald Trump has promised to sign it. But how good is it, really?

Headlines announcing the news referred to the effort as “sweeping” and an “overhaul of the criminal justice reform system.” And in some respects, the bill, which was championed by White House senior advisor and Trump son-in-law Jared Kushner, is a significant success, arguably the biggest since the Fair Sentencing Act’s passage in 2010. (Whether that says more about Congress’ lack of interest in the issue is up for debate.)

But to describe it as anything other than a modest reform effort is overplaying the material impacts of the bill. To begin with, it only applies to a very small number of people in the federal prison system—less than 3 percent of the roughly 181,000 people currently incarcerated in federal prisons, according to CNBC. When you remember that the overall prison population in America stands at around 2.2 million, a law that benefits so few people cannot be considered a “sweeping” achievement.

For those affected, however, there are some real and tangible benefits. As Justin George wrote for the Marshall Project last month, the bill would retroactively apply the Fair Sentencing Act, which reduced the racist sentencing disparity between crack and powdered cocaine offenses, to offenders who were convicted prior to 2010. This was a major shortcoming in the Fair Sentencing Act, and according to a Congressional Budget Office analysis from August, it would apply to 2,660 currently incarcerated people who were in federal prison as of May—89 percent of whom are black.

In addition, the bill would give federal judges more discretion over mandatory minimums, allowing them to reduce sentences for nonviolent offenders. The CBO estimates that this provision would allow more than 2,000 people annually to receive an average reduction in sentence of about 22 percent. This is only a recent addition to the bill, and was cited by the Brennan Center as a key reason why they reversed their opposition to the bill from earlier this year.

Finally, the First Step Act takes steps to improve conditions within prisons for incarcerated people, such as providing job and education opportunities, limiting the distance between where incarcerated people are serving their time and their families, and giving them credit for “good behavior.” As George wrote, however, a lot of this is already existing law that’s just being ignored:

The Bureau of Prisons is already supposed to be doing many of these things but has ignored Congressional mandates and its own policies, according to a number of federal audits and investigations. The First Step Act calls for greater use of halfway houses and home confinement, the least restrictive form of supervision, at a time when the federal prison system has been systematically dismantling its reentry programs. The proposed new law would also expand eligibility for compassionate release of elderly and terminally ill inmates, which would save the government housing and medical costs. Prison officials already have that authority but they release few who apply, denying thousands, some of whom die in custody.

All of this is to say that this bill promises to do some very good things. Where it falls short are all of the problems within the criminal justice system it doesn’t address.

First off: While Congress can’t exactly force states to adopt these new laws within their own jurisdictions, it used federal grant money in the 1994 crime bill as a carrot in order to coax states into passing “truth-in-sentencing” laws, which all but eliminated parole. A Congressional report in 1998 found that out of 27 states that had truth-in-sentencing laws, state officials in 15 of those states cited the grants as a “partial” or “key” factor in the state’s decision to enact those laws.

Beyond this, the bill doesn’t address many of the large-scale issues which make the justice system so morally bankrupt. There’s nothing in the bill, for instance, which addresses and attempts to minimize the role of private capital in prisons. To the contrary, as my colleague Jack Crosbie pointed out last week, it’s a giant giveaway to the private prison industry—there’s $375 million in funding in the bill for post-prison transition services, which, as the Tampa Bay Times reported last week, has been one of the industry’s biggest areas of growth. (Not for nothing, but according to the Times, both companies gave a quarter of a million each to Trump’s inaugural fund, which is reportedly under federal investigation.)

As Natasha Lennard wrote for the Intercept, this effort also shows the limits of leaning on bipartisanship to solve our problems. The bill does nothing to end cash bail or end arrests and incarceration for weed, and it fails to eliminate mandatory minimums altogether. The reason that it does none of those things is because Republicans and Democrats don’t agree on how bad these things are.

The difficulty with reformism is that the number of problems we face is so substantial that one major, public push is really the best shot you have for at least a decade. And so ultimately, the effort to actually “overhaul” the abject failure of our criminal justice system will only be successful if the First Step Act lives up to its name. And while this bill might be the best we can hope for under a divided government, it’s obvious that there’s still so much more work to do.