JustLeadershipUSA Statement on the Passing of the FIRST STEP Act in the House of Representatives

JustLeadershipUSA firmly opposes the FIRST STEP Act. We urge members of the Senate to rigorously review and reject this bill, in its current form, for the negative impacts it portends. In its place, we ask the Senate to put forth a true reform bill that allows all people in prison to earn time off of their sentence without implementing a structure that further exacerbates existing racial and ethnic disparities.

As JLUSA independently analyzed this 81-page bill on its own merits as potential “back-end” reform, the harm contained therein was immediately evident. This bill is not proportionate to the strength and sacrifice of the directly impacted people who have built this movement. The broad bipartisan support the movement for criminal justice reform now enjoys is the product of far-reaching generational harm. This country’s criminal justice system harms people of all racial and ethnic backgrounds and economic classes, and disproportionately harms Black and brown people, including queer and trans people and immigrants. The FIRST STEP Act will further perpetuate this disproportionality, and sets up the potential for other long-term damage.

The FIRST STEP Act does include some good provisions, and the good proposals in this bill could be passed together or alone, including:

• prohibition on the abhorrent practice of shackling pregnant women in prison;
• keeping incarcerated people in a facility that is 500 miles or less away from their primary residence;
• retroactive application of increased good-time credit potential from 47 to 54 days every year; and
• requiring Bureau of Prisons to help people obtain government identification before they leave prison.

The idea that we should create incentives for people in prison to earn time off of their sentence, and offer rehabilitative programming connected to earned time credit is a good idea that could have a significant positive impact. However, that is not what this bill does.

The earned credit portion of this bill sets up a false idea that people will be released from custody early, when in reality, it keeps people under the custody of the Bureau of Prisons and allows for the expansion of BOP’s footprint, especially when considered in the context of this Administration’s policies that threaten to increase the size of the Federal prison population.

The risk-assessments component of H.R. 5682 is particularly problematic given that study after study has shown that risk assessments perpetuate or exacerbate racial biases.[1] These risk assessment instruments should especially not be created or expanded under Jeff Sessions who uses his power in service of structural racism – a fact that is well documented from his time as a failed judicial nominee to his current tenure as the United States Attorney General. It is wrong and structurally biased to algorithmically determine someone’s perceived risk of being justice involved in the future based on zip codes for already over-policed communities of color. We have the opportunity to shift from a risk-assessment approach to a needs-assessment approach that engages survivors of crimes as well as justice-involved people prior to release and prioritizes community-based support upon release.

The use of risk assessments to determine who can benefit from potential programming or early release is even more problematic given that it would exclude people who are deemed to be at medium or high risk of reoffending. But even if a person is eligible, this bill gives wardens undue power to deny peoples’ transfer to a halfway house or home confinement. There is also an egregiously long list of people carved out based on crimes or convictions that make people ineligible for earned credit under this bill. Not only does this limit the bill’s effectiveness, but these exclusions also entrench the criminal justice system in other harmful policy arenas tied to the wars on drugs, women, and immigrants.

The Trump Administration has ramped up the war on immigrants and Attorney General Sessions is weaponizing the criminal justice system to perpetuate an already-oppressive agenda of discrimination against Black and brown  immigrants, creating “a zero-tolerance policy for all offenses referred for prosecution” on entry and re-entry. This bill does not protect from these devastating policies that demonize and increase that federal prison population. Rather, it further entrenches anti-immigrant politic by including provisions that deliberately exclude immigrants and makes it official policy for Immigration and Customs Enforcement (ICE) to pick people up from prison, pre-release.

Other reasons we oppose this bill include:

• it allows prison wardens to enter into partnerships with private entities without any public accountability;
• it calls for electronic monitoring as the only home release condition that’s available – a dangerous proposition given the technology sector’s interest in pursuing an expansion of carceral state through e-carceration; and
• it contains insufficient funding for the few positive provisions within this bill.

If this Congress and White House build real forward-thinking reform, whether piecemeal or comprehensive, we will support it and ask our partners and allies to do the same. In the meantime, we remain adamantly opposed to the FIRST STEP Act and to the harmful pseudo-reform efforts included in this bill.

[1] https://www.hrw.org/news/2018/03/30/coalition-letter-regarding-concerns-about-s-1994-corrections-act-2017-and-prison and https://civilrights.org/vote-no-first-step-act/#_edn1