Penn Law faculty perspectives on passage of the First Step Act
On December 18, the Senate passed the First Step Act, a bipartisan criminal justice reform bill that modifies sentencing laws, expands job training, and takes additional steps intended to reduce recidivism and create a fairer and less costly criminal justice system. Penn Law faculty commented and provided their analyses of the implications of the bill’s passage.
In those state prison systems, like Pennsylvania’s, where hope among incarcerated persons is in short supply, the passage of the First Step Act by bipartisan majorities in the Congress may generate a bit of optimism. Although the Act directly impacts only persons confined in federal prisons, it reflects a trend in sentencing reform that could eventually lighten the penalties of persons now held in state correctional facilities (roughly 87 percent of the total).
For the past 8 years or so, the Penn Program on Documentaries & the Law and its student producers and directors have produced, in collaboration with public interest lawyers and grassroots advocates, videos about some of the issues addressed by the Act, namely compassionate release of terminally ill prisoners, the practice of restraining women who are incarcerated during childbirth, mandatory minimums (especially for persons convicted of second degree or felony murder), and the lack of parole eligibility for persons sentenced to life. The need for Pennsylvania to undertake retroactive reforms of sentences similar to those in the Act can be measured in terms of the impact of mass incarceration on the lives of individuals, the well-being of families, the viability of poor and minority communities, and fiscal strength of the Commonwealth.
The passage of the First Step Act offers a useful reminder that criminal justice reform remains one area where people of different ideological perspectives can come together to enact meaningful new measures that strengthen society. The Act should help address two persistent and well-documented problems with the criminal justice system: lengthy incarceration terms that impose heavy burdens on communities and taxpayers while yielding limited public safety benefits, and inadequate supports to enable prisoners re-enter society and go on to productive, crime-free lives. However, the federal system — which is the focus of the Act — represents only a small portion of the criminal justice system, so there is still much work to do on these issues at the state and local level.
On the positive side, from the viewpoint of addressing the issue of mass incarceration in the United States, the First Step Act makes effects some significant reforms in federal sentencing policies. It is also significant from a political perspective as it received broad support for both the “left” and the “right” and may portend other reforms going forward, both on federal and state levels.
On the other hand, compromises in the legislative process eliminated the retroactive application of most of the provisions, thereby limiting the Act’s immediate impact on the federal prison population. And since the federal prison population comprises less than 10 percent of the nation’s incarcerated persons, the Act’s overall impact on prison population will be very modest.
The First Step Act is aptly named. It takes advantage of an emerging bi-partisan consensus that our criminal justice system can be improved, and that incarceration can be reduced without increasing crime or reducing community safety. But its measures are limited, and there is a risk that Congress will feel that criminal justice reform has been done, and that its focus should be elsewhere, when in reality the country very much needs the Second Step Act, Third Step Act, and beyond.
It’s wonderful that the disparity between crack and powder cocaine in federal sentences is being removed, but we need to deal with sentences for users (as opposed to large-level distributors) of all drugs, and provide diversion courts rather than federal incarceration.
Importantly, the bill reduces the practice of “stacking” sentences for gun and drug charges upon one another; this has the real-world effect of eliminating the right to trial by making potential sentences enormous.
The bill deserves praise for limiting mandatory minimum sentences and easing a “three strikes” rule, and for increasing “good time” and “earned time” credits that will increase access to work programs and reduce sentences, programs that have demonstrated reductions in recidivism.
At the same time, the bill does nothing to:
- reduce or eliminate absolute immunity for prosecutors;
- improve transparency in the federal law enforcement system;
- clarify the government’s obligations to provide exculpatory information to defendants, particularly prior to negotiating a plea bargain.
It provides no additional funding for criminal justice research or data-collection, and:
- does nothing to help police improve their ability to investigate crimes;
- does not establish a fund to care for individuals who have been convicted of crimes they did not commit; and
- does not direct the DOJ to set up a Conviction Integrity Unit as so many jurisdictions have across the country to handle cases where mistakes have been made for guilt or innocence.
So, clearly much remains to be done.