Another attack on the FIRST STEP Act failing to acknowledge modern political realities

DeAnna Hoskins, the president and CEO of JustLeadershipUSA, has this lengthy Hill commentary assailing the FIRST STEP Act as "a step backward [that] invites a scary future." I find the claims in this commentary a bit scary, and here are excerpts with a few comments to follow:

By limiting “prison reform” to a combination of half-hearted credit time — which would leave people on home confinement or in halfway houses, rather than shorten sentences — and a reliance on risk assessment instruments that are steeped in racial bias, the FIRST STEP Act could hit the brakes on a nationwide movement to reform and redefine the justice system.

One of the most deceptive parts of this bill is that it creates the impression that people can earn time off of their sentence via new “credit time.” This is simply not true. This bill will keep people who earn credit time under the Bureau of Prisons’ control by replacing one form of incarceration with another.  The FIRST STEP Act does not offer a real path toward release and redemption.  Instead, it has the potential to increase the reach of the federal prison system via electronic monitoring and expanded home confinement, which is consistent with this administration’s efforts to increase the size of the federal prison population.

For those released from prison on credit time, an electronic shackle awaits, branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.  As with any for-profit industry, once privatization enters the market an agreement is made for the company to be guaranteed a certain level of profit margin. In order to profit from the FIRST STEP Act, these companies will be guaranteed a certain number of individuals to remain on electronic monitoring or home confinement, creating a bodies-for-sale system.

What’s more, this bill ensures that many people are excluded from eligibility to earn credit time.  The FIRST STEP Act calls for the creation and implementation of a risk assessment instrument to determine who is worthy.  Such assessments have been shown to perpetuate or exacerbate racial biases and institutionalize structural racism by relying on data such as “zip code” and “age at first arrest” — both signal over-policing of black people and communities of color, rather than risk of actual behavior....

There are some good aspects of this bill, including the prohibition of the abhorrent practice of shackling pregnant women in prison and the retroactive application of an increase in good-time credit from 47 to 54 days per year.  Even with these positive provisions, the rest of this bill widens the net of systemic harm.  The fact that this bill could move us a few inches forward is not nearly enough to mitigate the reality that the FIRST STEP Act is only a first step toward a devastating future.

We do not have a binary choice between the status quo and the FIRST STEP Act.  To the contrary, the very real possibility of overhauling and wholly transforming our criminal justice system exists, and needs to be pursued with unmitigated and tireless vigor of the movements we are seeing in cities, counties and states across the country.

The need and demand for reform are real.  The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system.  We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.

Though I think it reasonable to express concern about how elements of the FIRST STEP Act might be implemented, stating that this bill would bring a "devastating future" is disturbing hyperbole.  Moreover, as a number of former federal prisoners have stated, it is deeply misguided to suggest electronic monitoring and home confinement is functionally equivalent to continued confinement in federal prison.  Most fundamentally, the claim that there is "the very real possibility of overhauling and wholly transforming our criminal justice system" seems entirely disconnected from the reality that there has been prominent advocacy for federal criminal justice reforms for the last half-decade without a single bit of legislation getting through Congress.

Like the author here, I would like to see reform that goes beyond the FIRST STEP Act.  But broader reforms have be stalled by leaders in DC who are likely to be in place at least until 2020 if not later.  Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting.  And if the politics are really behind "overhauling and wholly transforming our criminal justice system" now or later, passage of the FIRST STEP Act seems very unlikely to change those politics.  But rather than seeing a politic consensus for "transforming our criminal justice system," I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder. 

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• An (encouraging?) update on the state of federal criminal justice reform in US Senate 
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts