Too Risky

To its credit, the First Step Act includes some modest sentencing reforms that will likely result in the early of release several thousand of the 180,000 people serving time in federal prisons. The legislation makes retroactive the Fair Sentencing Act of 2010, which reduced (but did not eliminate) the sentencing disparities between crack and powder cocaine. It lowers the penalties for some other drug offenses and softens the federal three-strikes law but does not make these sentencing reforms retroactive. The measure expands the availability of early-release credits for some incarcerated people and of compassionate release for people who are gravely ill. The First Step Act also ameliorates some of the conditions of confinement by, for example, prohibiting the solitary confinement of juveniles and the shackling of pregnant women.

Except for the sentencing reforms, the Federal Bureau of Prisons already had the power to implement most of these changes through its administrative authority. Indeed, for nearly a decade now, the shackling of pregnant women has been banned in the federal system. In its final year in office, the Obama administration prohibited placing juveniles in solitary confinement.

The addition of the modest sentencing reforms to a revised version of the First Step Act prompted the Leadership Conference on Civil and Human Rights and dozens of civil rights and criminal justice reform organizations to do an about-face. They endorsed the measure even though many of the “grave concerns” they had raised when the bill was first introduced last spring had not been rectified.

Their top concern was the bill’s centerpiece — development in their words of a “dangerous” algorithmic “risk and needs assessment system” that risked “embedding deep racial and class bias” into early-release decisions in the federal prison system. As they noted in a letter last May, the research documenting the discriminatory effects of risk assessment tools is extensive. For example, a ProPublica study of Broward County, Florida, found that the risk assessment system used in sentencing decisions was twice as likely to mistakenly predict the future criminality of African Americans compared to its predictions for whites.

The First Step Act’s preoccupation with risk assessment bolsters a disturbing tendency to valorize recidivism rates as the key indicator of what the government and the public are receiving in return for the $172 billion in tax money that the Prison Policy Institute estimates the United States spends each year on law enforcement for criminal behavior, corrections, and criminal court cases. At the elite legislative level, the movement against mass incarceration has been morphing into a movement against recidivism. But recidivism, which the First Step Act mentions more than one hundred times, is a misleading gauge of public safety.

The focus on lowering recidivism rates in the First Step Act and other measures billed as criminal justice reform has fostered the mistaken belief that people released from prison are the primary drivers of the crime rate. Research findings that the majority of people released from prison recidivate within three years have spurred alarming claims about a “walking crime wave,” in the words of Heather MacDonald of the conservative Manhattan Institute, as hundreds of thousands of people leave prison each year, only to be returned by the “revolving door.”

Left unsaid is that recidivism is a notoriously slippery concept, variously defined as re-arrest, reconviction, or return to prison or jail for a new crime or for a technical violation of probation or parole, such as a failed drug test or curfew offense. The number of people who are sent back to prison for committing a new serious crime is trivial. The overwhelming majority who are returned to prison are sent back for a minor crime or a technical violation.

Although returning citizens are arrested at a far higher rate than the general population, they are responsible for only a small fraction of crime committed each year, according to research by Richard Rosenfeld of the University of Missouri-St. Louis and other criminologists.

Relatively lower recidivism rates are not necessarily evidence of sound penal policy. Jurisdictions that cast a wide net and sweep up many low-level offenders in their jails and prisons rather than sentencing them to probation or some other alternative to incarceration tend to have lower recidivism rates. But they pay a high social and economic cost for their over-incarceration of low-risk offenders.

Jurisdictions that make extensive use of parole tend to have higher recidivism rates because more of their returning citizens are under the surveillance of parole officers and subject to onerous parole conditions that, if violated, could send them back to prison. “Comparing virtually any group of states or cities with simple, aggregate recidivism figures is inherently misleading and should constitute statistical malpractice,” according to criminologists Jeffrey A. Butts and Vincent Schiraldi.

Arrest rates are measures of police activity, not necessarily of criminal behavior. People subject to greater police attention, notably young minority men, residents of high crime areas, and people with prior criminal records, tend to be arrested more often.

The First Step Act, which the Fraternal Order of Police eventually endorsed, will enhance the capacity of the police to surveil and arrest. The legislation explicitly channels any money saved by reducing the prison population to law enforcement, the Bureau of Prisons, and the latest front in the endless drug wars. Like many other measures billed as criminal justice reform, the First Step Act perverts the original premise of the justice reinvestment movement — that these savings should be used to rebuild the communities devastated by mass incarceration.

With the growing popularity of risk assessment systems, people are getting doubly penalized for their criminal history. The United States is exceptional in that prior criminal history weighs heavily in the initial sentencing decision. Most other Western countries accord past criminal behavior a trivial role in sentencing. Like many sentencing guidelines, risk assessment systems place heavy weight on criminal history in determining who qualifies for early release.

The burden of that history falls heaviest on low-income people and people of color. They are more likely to be disproportionately apprehended, arrested, and incarcerated due to factors unrelated to the proportion of crime they commit. These include intense police surveillance of their neighborhoods, inadequate legal representation, and the race, class, and other biases that accumulate at each step of the criminal justice system.

Reentry and Recidivism

The emphasis on recidivism has contributed to a narrow conception of reentry. Most of the First Step Act’s reentry funding is explicitly tagged for programs designed to reduce recidivism rates by improving the human capital of people in prison and after they are released. But it is well-established that even the best educational, vocational, substance abuse, and other programs have only a modest impact on lowering the unemployment and recidivism rates of returning citizens. They also are relatively expensive and hard to replicate on a large scale.

Human capital is a major factor in determining who gets a job and desists from crime after leaving prison — but it is the human capital they already had at the time they were incarcerated, not whatever skills or education they acquired while serving time.

Larger political, social, and economic forces drive crime rates and are powerful determinants of who desists from crime. People released to poor neighborhoods are more likely to reoffend. So are people who lack access to adequate health care and who return to unstable communities with few nonprofit groups offering services and other resources.

Champions of criminal justice reform on the Right, most notably the Koch brothers, Grover Norquist, and Newt Gingrich, have rallied on behalf of reentry while viciously undermining the proven roads out of poverty and crime: a good public education, a robust safety net, public job creation, a strong labor movement, affordable housing in stable, integrated neighborhoods, and Medicaid expansion.

We know that some prison-based substance abuse and other programs greatly improve the health outcomes and quality of life for people who are incarcerated and their families. These programs may only nick recidivism rates in the short term but help people desist from crime over the long term. The evidence is overwhelming that providing incarcerated men and women with opportunities to participate in meaningful employment, education, and self-improvement programs fosters safer, more humane, and less degrading prisons.

Such programs are symbolically important. They are a public acknowledgment that people who are incarcerated are still citizens who do not deserve to be warehoused in degrading, abusive environments. But thanks to the obsession with recidivism rates, these programs have less political standing.

The US approach to its returning citizens stands in striking contrast to how people released from prison are treated in other Western countries. With its focus on recidivism and risk assessment, the First Step Act is more about catching a person doing something wrong rather than ensuring that people receive the housing, health care, and other supports they need to successfully return to their communities.

Death and Incarceration

The preoccupation with lowering recidivism rates diverts public attention from reckoning with some of the most insidious effects of mass incarceration. The low wages and joblessness among returning citizens are not simply the predictable result of skill deficiencies and antisocial behavior, but of incarceration itself, which erodes social networks, stigmatizes people with a criminal record, and disqualifies them from many licensed occupations. Bruce Western of Columbia University estimates that the lasting effect of imprisonment on personal income are enormous, reducing the annual earnings of returning citizens by 30 to 40 percent.

The recidivism problem pales in comparison with disquieting research findings on the mortality rates of people released from prison. One study in Washington State found that the risk of dying shortly after release is astronomical — nearly thirteen times higher than the adjusted mortality rate for the general population. Returning citizens are over a hundred times more likely to die of an overdose within the first two weeks after release and are at great risk of suicide. Moderately higher rates of mortality persist many years after people have completed their sentences. A prison sentence is in many cases a death sentence. But returning citizens who die prematurely do help to keep the recidivism rates down.

Reform on the Cheap

Van Jones’s claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal — not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designates $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each person in the federal prison system. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to the Sentencing Project, which ultimately gave its qualified support to the First Step Act.

The First Step Act includes an additional $95 million annually for the next five years for pilot substance abuse, reentry, and prison-based educational and vocational programs at the federal, state, and local levels. This works out to barely $14 a year for each of the nearly seven million people under control of the criminal justice system today. The First Step Act establishes a perverse incentive structure to prod more incarcerated people to participate in various programs.

It authorizes the Bureau of Prisons to use transfers to prisons closer to home and additional “phone and visitor privileges” as carrots. But additional to what? Incarcerated people have no statutory right to a certain number of visits and phone calls. The First Step Act acknowledges as much by referring to privileges, not rights. The legislation opens the door to a possible new normal in which all phone calls, visits, and transfers are considered earned privileges contingent on program participation.

Across the country, prisons and jails have been constricting access to the outside world by banning snail mail, curtailing visiting hours, and pushing email and videoconferencing run by for-profit firms as alternatives. They also have been limiting media access and charging exorbitant fees for phone calls. These developments are odds with the fact that ongoing contact with family and friends has proven to be a critical factor in successful reentry and desistance from crime. Such contact is vital in mitigating the trauma that incarceration inflicts not just on people serving time but also on their children and other family members.

The fundamental problem is not that people in prison do not want to participate in programs but rather the critical shortage of those programs, let alone quality programs. Currently, 16,000 people are on the wait list for the BOP’s literacy program.

The federal prison system is currently in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors, and even cooks have been drafted to serve as temporary correctional officers because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system.

It is impossible to run effective prison programs when people are locked down in their cells due to staffing shortages, teachers and counselors are filling in for correctional officers, and assaults and violence are on the rise, as has been the case in the federal prisons.

The Bureau of Prisons is not blameless for this crisis. It has enormous discretion that it has been unwilling to wield to reduce the federal prison population and improve the conditions of confinement.

For all its law-and-order zeal in the 1980s and 1990s, Congress nonetheless endowed the Bureau of Prisons with important administrative powers to reduce the federal prison population that it has been unwilling to use. These include compassionate release measures and the “second look” provision of the Sentencing Reform Act of 1984, which permits a reconsideration of sentences. More than a decade ago, an American Bar Association report concluded that, without any changes in the federal sentencing guidelines or creation of new programs, the bureau could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes.” Instead, the bureau has promulgated dire projections about the need for more prison beds as it has gone hat in hand to Congress each year for more money to expand the federal prison system. This pattern did not change much under President Obama.

Defending reentry and prison programs in the name of reducing recidivism rates, trimming penal budgets, and cutting the prison population is a risky and self-defeating strategy. If crime rates escalate or if the recidivism rate remains stubbornly unchanged despite all the reported investment in reentry, the moment is ripe for another public outburst that “nothing works.” Once again, imprisonment will be seen as the only answer to the crime problem — despite the mountain of evidence from the National Academies of Sciences and other leading researchers that locking up people at record levels in the United States did not reduce the crime rate by much, but did have enormous social and economic costs.

The First Step Act flies in the face of the best research on crime and punishment in other ways. It excludes from consideration for early release wide swaths of the federal prison population based on offense categories and immigration status. The list includes dozens of offenses, including homicide, computer fraud, alleged gang membership, many immigration-related offenses, nearly all sex offenses, and many categories of assault and possession of a firearm. The category of “violent” offenses is broadly drawn, including, for example, all threats of the use of force. People convicted of sex offenses or violent crimes who are terminally ill are ineligible for compassionate release. Many documented immigrants and most undocumented immigrants will not qualify for early release, regardless of the offense for which they are serving time.

These exclusions bar many people who do not pose serious threats to public safety from being released early to halfway houses or home confinement. In doing so, this approach bolsters the fiction that the United States can slash cut its prison population by focusing on the “non, non, nons” — people convicted of nonserious, nonsexual, nonviolent crimes. Such exclusions are at odds with the widespread consensus among experts on crime that criminal menopause exists. Most people age out of crime, even people convicted of violent crimes.

The Penal Market

The First Step Act furthers the privatization of the prison system in troubling ways that have received little public attention. As calls to end mass incarceration have escalated in recent years, the private prison industry has been repositioning itself in the marketplace by pushing for the expansion of immigrant detention facilities and by riding the reentry and recidivism wave. CoreCivic and The GEO Group, the country’s two largest for-profit prison companies, championed the First Step Act, which seeks to foster more public-private partnerships in reentry services, halfway houses, and home confinement.

Private prison companies have sought to diversify by becoming leaders in what GEO describes as the “corrections lifecycle.” This includes investing heavily both economically and politically in what critics have called the “Treatment Industrial Complex” comprised of for-profit mental health and substance abuse programs, drug testing, electronic monitoring, and other reentry services.

The First Step Act promotes privatization in other ways, including expanding the market for products made by Federal Prison Industries. This penal labor program has an ignominious record of enlisting incarcerated people to do dirty, dangerous jobs with little regard for their health, safety, or dignity. Federal Prison Industries will now be permitted to sell its products to correctional facilities, tax-exempt organizations, and elsewhere.

Barred Again

It is truly faith-based criminal justice policy to think any of this is going to change much for the better with the First Step Act, which was enacted just days after President Trump nominated William Barr to succeed Jeff Sessions as attorney general.

Barr championed a slew of hard-line penal policies when he served as George H. W. Bush’s attorney general. Shortly before leaving office in 1992, he endorsed a Department of Justice report — actually entitled “The Case for More Incarceration” — to justify these policies. During his two days of Senate hearings in January, Barr was incorrigible and unapologetic. He defended the policies that built the carceral state and continued to claim, despite all the mounting evidence to the contrary, that locking up record numbers of people in the United States was responsible for the historic drop in the crime rate since the mid-1990s.

Trump rode into office on a refurbished Nixonian law-and-order campaign. Some people have consoled themselves that the damage he can do to the criminal justice reform movement is minimal because barely 8 percent of the US incarcerated population is housed in federal prisons. Most people — more than 2 million in all — serve their time in prisons and jails run by state and local governments. But as with other high-profile debates over crime and punishment — super predators, Willie Horton, the drug wars, three strikes, the crack-powder cocaine disparity, truth-in-sentencing — what happens in Washington rarely stays in Washington. The First Step Act will have powerful trickle-down effects on criminal justice policy.

Van Jones credits formerly incarcerated people and their families for their decisive role in passage of the First Step Act. He singles out Jared Kushner, Trump’s son-in-law and senior adviser whose father served time, as the legislation’s superhero. Like many other prominent commentators, Jones ignores the fact that some key organizations of formerly incarcerated people and their families opposed the final version of the legislation.

These groups castigated the First Step Act for furthering what Michelle Alexander has termed “e-incarceration” or the “Newest Jim Crow.” “The FSA’s carve-outs of vulnerable populations, the ushering in at the federal level of risk assessment technology and the growth of electronic monitoring must not become the norm, especially now that there is so much momentum for decriminalization and decarceration” at the local and state levels, declared DeAnna Hoskins, the head of JustLeadershipUSA. Patrisse Cullors, co-founder of Black Lives Matter, castigated Jones for “cap[ping] off this crudely carried out campaign with an unnecessary and profoundly insensitive lauding of President Trump.”

She and others denounced the impossible situation they were put in, forced to choose between concrete short-term victories for a few thousand people at the expense of justice over the long term for the people and communities devastated by the carceral state. “My own experience of incarceration took place decades ago. Had First Step’s proposed risk-assessments been in place for me then, I would have been released on account of my low-risk profile,” explained Rev. Vivian Nixon, executive director of the College & Community Fellowship. “But I would not be willing to sacrifice the dignity and comfort of the vast majority who are excluded from this bill for comforts granted to the fortunate few.”