The federal legislation, known as the First Step Act (“FSA”), became law in December 2018. The FSA was enacted and signed into law with two underlying objectives: 1, bring justice to sentencing outcomes for federal inmates, and 2, reduce the inmate population in the U.S. Bureau of Prisons (BOP).
Congress intended for these two objectives to be achieved without risk to public safety.
On October 28, 2022, the U.S. Sentencing Commission issued a news release informing the public that it was implementing “two significant changes made by the First Step Act of 2018” for the 2022-2023 amendment year ending May 1, 2023.
First, the Commission will suggest “updated guidance” to the federal courts, at both the district and circuit levels, about how to interpret and apply FSA’s amendment to the statute which allows federal inmates to apply for “compassionate release” without having the Director of the Bureau of Prisons to “make a motion” for such release.
This amendment has caused considerable consternation and conflict among federal district court judges and circuit courts on how to apply the amendment.
Second, the Commission will implement the changes FSA made to the “safety valve” in certain drug cases that allows some drug trafficking offenders to avoid a mandatory minimum sentence who have “more than one criminal history point.”
After four years, the impact of the FSA has been mixed.
The Prison Policy Initiative reported in March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates (a continued estimate) have been released through one or more provisions of the FSA.
NBC News reported on the delays in July of last year.
“Thousands of nonviolent federal prisoners eligible for early release under apromising Trump-era lawremain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say,” Erik Ortiz reports for NBC News.
The reporting from NBC was generous in spreading the blame across administrations highlighting the Biden administration’s trouble in following through with a successful early-release program.
“Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.”
Two immediate reasons can be offered for the less-than-desired outcome of FSA.
First, there was the corrupt, scandal ridden tenure of Michael Carvajal (one of the dozens of corrupt Trump appointees), who resigned this past January, that led to massive bureaucratic incompetence by the Bureau of Prisons (BOP) in trying to implement the FSA.
Second, the sheer number of reforms in the FSA that are the antithesis to the Nixon-era “lock-‘em-up-and-throw-away-the-key” penal philosophy of both the BOP and the U.S. Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled.
The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.
It was Congress’ intent to have the promise of FSA fulfilled with the following criminal justice reforms:
- Curb Mandatory Minimum Sentencing: Allows flexibility in sentencing based on character and circ*mstances rather than on guidelines for fixed offenses.
- Assigning Inmates to Facilities Closer to Home: When possible, federal inmates should be placed in a facility within 500 miles of their primary residence.
- Expansion of Women’s Rights: Penal facilities provide free feminine hygiene products, and bars the use of restraints on pregnant women or those in postpartum.
- Increased Good Time Credit: Increased good time credit earned per year from 47 to 54 days. Offers additional good time credit for inmates who participate in recidivism reduction programs or other self-help programming.
- Increased Funding for Job Training and Educational Programs: Increased funding for teaching life skills, job training, and other programs with “real world” applications. The penal facilities will make it easier for faith-based groups and other service providers to visit these facilities to initiate and manage these programs.
- Increased Use of Halfway Houses and Home Confinement: Allows inmates to earn 10 days of halfway house credit for every 30 days of participation in an approved rehabilitation program. Increases opportunity for early release for elderly inmates and inmates who are terminally ill. Inmates over 65 can request early release, and if granted, will serve the remainder of time in home confinement.
In its annual April 2022 report required by FSA, the Department of Justice (DOJ) disclosed that of the BOP’s 136,704 inmates, 91,260 of those inmates fall into minimum, low, or medium risk ranges for future criminal behavior.
In other words, at least 75,000 federal inmates could be released today without posing a real risk to public safety. But only a fraction of that number has been released because, as the DOJ’s annual report concludes, neither its own agency nor BOP can establish meaningful and reliable measures for determining who should and who should not be released under the FSA.
This bureaucratic failure is significant because the U.S. Supreme Court held on June 27, 2022, that the FSA allows U.S. district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.
In a rare move, conservative Justices Thomas and Gorsuch joined the three liberal justices to deliver its 5-4 decision—a decision that will allow district courts more flexibility in determining how much, if any, sentences can be reduced under the FSA.
The United States represents 4 percent of the world’s population but 16 percent of the world’s incarcerated population. American criminal justice policymakers continue to pursue the discredited notion that mass incarceration is the best response to social waves of violent crime.
The U.S. is going through yet another period in its history where social, economic and political divisions contribute to rising rates of violent crime. Today’s high violent crime rate is not a new phenomenon in America. The nation’s history is replete with “violent crime waves.”
But the revenge concept inherent in mass incarceration will not solve these dangerous social conditions. And it will most certainly continue to diminish to promise of criminal justice reforms, like the FSA.
The result, as the Vera Institute reports, will be the continued, If not increased, reliance on the mass incarceration of “Black people, immigrants, Native Americans, refugees, and others” in a futile attempt to address public safety.
Mass incarceration has not, and will never, work. The numbers simply do not lie.
Vera Institute points out that the result of mass incarceration “has been the persistent and disproportionate impact of incarceration on people of color, immigrants, and people experiencing poverty. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English-speaking European immigrants—made up 40 to 50 percent of the prison population. In 2015, about 55 percent of the people imprisoned in federal or state prisons were Black or Latinos.”
The conservative political ideology’s forever “war on crime” will not produce public safety. The United States today reeks of political divisions, racial animosity, an overabundance of deadly weapons, mental illness, and incompetent militarized law enforcement who shoot to kill without reason and fail to shoot with reason as evidenced in the tragic Uvalde mass shooting—all of these social ingredients are recipe for a complete breakdown in public safety.
Americans spend billions of dollars each year absorbing, promoting and distributing violent content. Each year the number of people that not only listen to but create the most outlandish conspiracy theories on social media is increasing exponentially—much of which leads to violence and contempt for public safety.
Thus, our Democratic institutions are endangered more by the industries that promote violence than by those who perpetrate violence—from profit-seeking corporations to social media trolls that literally drink their own piss every day to avoid COVID-19 while simultaneously promoting a QAnon-driven agenda of violence.
