The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act aka

The First Step Act:  Rhetoric or Reality?


Once again, the Federal criminal justice community is filled with optimism that there will be some element of significant reform in the potential passage of S.3649—also known as the “First Step Act”.  This legislation, which reportedly has bi-partisan support, is endorsed by Jared Kushner, and even has tepid support of the President, was introduced earlier this year and has been languishing.  Nevertheless, the rumors are flying that Federal prisoners are about to get an early Christmas present.

In the Bill as introduced, there certainly are some significant benefits for Federal inmates.  These include allowing inmates still suffering from the powder/crack cocaine disparity to petition to have their sentences reconsidered, giving Judges the discretion to expand the “Safety Valve” provision, expanding the good time credit provision in the Federal Bureau of Prisons to 54 days (which was Congress’ original intent) and expanding community release programs for inmates who participate in “rehabilitative programs”.  There were also numerous additional provisions, all intended to press the Federal Bureau of Prisons into reforming and, in some instances, humanizing their services.  (e.g. “requiring the BOP to provide feminine hygiene products to female inmates at no cost” and banning the shackling of women during childbirth).

However, the reality is that there is little chance this Bill will be passed in this or any similar form. First, there is the political wrangling.  Even though it passed in the House, the Senate opposition is coming from both parties.  Some opponents believe the Bill does not go far enough; others say it goes too far.  Senator John Thune (S.D.), who will be No. 2 in the Senate next year, recently explained:  “We’ve got people who are adamantly for it, strongly for it, people who are adamantly opposed to it and a lot of people who are asking the question, ‘Why now?’”

Equally important, having worked with Federal inmates over the past 41 years, and knowing the Federal Bureau of Prisons and how they move (or don’t), there is no way the BOP can readily institute the multitude of initiatives called for in this legislation.  One easy example is that the Bill calls for the Attorney General to “…conduct a review of the risk and needs assessment system used by the Bureau of Prisons and develop recommendations on evidence-based recidivism reduction programs”.   Talk about a slow-moving glacier!  In addition, can anyone who has dealt with the BOP bureaucracy really believe they can retroactively calculate good time reductions for over 200,000 prisoners quickly?  Or develop a methodology to develop rehabilitation programs and award extra credit for participating?

It’s often said that the road to hell is paved with good intentions.  The Bill has tremendous potential for serious criminal justice reform, but my fear is that it is going in the wrong direction.  I would love to be wrong.