The First Step Act, prison reform and the deep roots of mass incarceration

"Low-income communities of color have been targeted for decades by various policing surveillance and incarceration"

Published December 4, 2018 5:00AM (EST)

President Donald Trump speaks about H. R. 5682, the "First Step Act" in the Roosevelt Room of the White House in Washington, Wednesday, Nov. 14, 2018, which would reform America's prison system. (AP/Andrew Harnik)
President Donald Trump speaks about H. R. 5682, the "First Step Act" in the Roosevelt Room of the White House in Washington, Wednesday, Nov. 14, 2018, which would reform America's prison system. (AP/Andrew Harnik)

When President Donald Trump endorsed a prison reform bill titled the First Step Act in mid-November, it revived both bipartisan legislation that had seemed doomed and a national political debate about mass incarceration.

The bill targets federal prisons — which incarcerate more than 180,000 individuals — and would allocate more funding to anti-recidivism programs, make certain offenders eligible for early release, reduce mandatory-minimum sentences for some drug crimes and apply the Fair Sentencing Act of 2010 retroactively. (That legislation reduced the sentencing disparity between crack and cocaine, two forms of the same drug, from 100:1 to 18:1.)

The bill would also ban, under most circumstances, the shackling of pregnant inmates and mandates that individuals could not be incarcerated more than 500 miles away from their immediate families.

An earlier version of the bill passed overwhelmingly in the House in May, but focused almost exclusively on re-entry programming and did not stipulate any sentencing reform — a concern for many. After all, how meaningful could a prison reform bill be, if it failed to target the tough-on-crime federal policies that are not just excessively punitive, but discriminatory and enforced disproportionately — made clear in the over-policing and incarceration of black communities.

During an event at the White House, Trump pledged his support for the bill and urged Congress to act. "I’m waiting with a pen," he told lawmakers. "It’s the right thing to do."

More than two weeks have passed since that moment, yet Majority Leader Mitch McConnell has not brought the bill to the Senate floor, in spite of both Trump's continued endorsement and substantial bipartisan support. Sen. Tom Cotton, R-AK, has emerged as an unrelenting conservative critic of the legislation, and both McConnell and he have stressed the lack of time to consider the bill in the remaining lame-duck session of Congress – a misleading excuse, as there have already been multiple hearings in both chambers regarding the bill's content.

Aside from Cotton and other conservative dissenters, the bill has gained support from the American Civil Liberties Union, Christian groups, the Koch Brothers and the Fraternal Order of Police, among others. The worry is that, if the First Step Act – which is modest by progressive standards – is not passed in Congress with a Republican majority, once Democrats take control of the House, they would push for the bill to include more comprehensive prison reform measures, leaving it dead in an even wider Republican-majority Senate.

As the politics of the First Step Act play out, outlets like The New York Times have published articles that feature a selective historical recollection of who has supported the tough-on-crime policies that have debilitated families and communities, most especially low-income and of color, and skyrocketed our nation's prison population.

"Liberals have long opposed the current sentencing laws for what they see as having unfairly incarcerated a generation of young men, particularly African-American men, for drug and other nonviolent offenses," Nicholas Fandos and Maggie Haberman wrote for the Times.

It is a glaring misrepresentation of America's even recent history. As Zak Cheney-Rice wrote for New York Magazine: "Democrats and Republicans may diverge on several issues, but their zeal for shuffling black people in and out of cages has been mutual more often than it has not."

Harvard historian Elizabeth Hinton spoke to Salon about the First Step Act, what's at stake and why, in order to understand the scope of mass incarceration, it demands an accurate retelling of America's history.

In Trump's endorsement of the bill, he lauded its bipartisanship and said that it "rolls back some of the provisions of the Clinton crime law that disproportionately harmed [the] African American community." What did you make up Trump's support of the bill?

Well, the bipartisan support is not, as many initially suggested, this kind of unprecedented thing – or that criminal justice reform is an issue that's been long championed by liberals alone. In my research, which stretches back to the origins of national law enforcement programs and the launch of the War on Crime during the Johnson administration, it really shows that, in terms of domestic policy, crime control has been the issue where conservative and liberal interests have been thoroughly intertwined. So there's been over a half century of firm bipartisan support for what has been really draconian and harsh criminal justice sentencing provisions.

Now, we're reckoning with the fact that the U.S. is the largest incarcerator on the planet – that our prison population far surpasses that of all other industrialized nations – and the sheer cost of incarceration, the fiscal burden that is placed on states. The fact that a handful of states spend more money on incarceration than on education has led to a kind of bipartisan movement towards de-carceration and rethinking some of our criminal justice priorities that is encapsulated by initiatives like this – like the work that Newt Gingrich and Van Jones are engaged in together, the Koch Brothers firm support of criminal justice reform. So it's been something that – for quite some time – that Republicans and Democrats, conservatives and liberals, have agreed on.

The signal that the Trump administration has given, and one of the things that was striking about at least Trump's campaign, is that he really ran on these antiquated, old concepts of "law and order" and really harsh policing. Even in his State of the Union address – in his first state of the union – he had mentioned his recognition of the importance of providing reentry programming. In many cases, the thrusts of this bill is about addressing issues of reentry and beginning a process that allows the earlier releases for people who are convicted of certain crimes.

I think it's good that the Trump administration embraced the bill as is. Now, I think, in response to Trump's endorsement, a number of groups like the National Sheriffs Organization have come back and tried to lobby conservative senators to tighten up some of the discretion that the bill affords to judges and things like that. But I think that Congress should pass it. Especially given that the Trump administration supports the bill as is, Congress should move to pass the bill.

You raised some of Trump's rhetoric, and it is very conflicting. A month ago, Trump is speaking to law enforcement, talking about we need to bring back stop-and-frisk in Chicago.

The acronym of what First Step stands for is this nod towards the need to provide people with, at least in theory, resources and support to be able to return to society safely– if the Trump administration is dedicated to major re-entry reform that doesn't contradict at all the kind of emphasis on zero tolerance policing and the tactics that have been used that helped create the prison problem in the first place.

The problem is that, if we're going to have any kind of meaningful criminal justice reform, it needs to involve police reform and new approaches to keeping communities safe. It needs to really involve a re-thinking of our sentences – and not just for drug crimes – but also the ways in which we sentence people who are convicted of violent crimes. If we're serious about de-carcerating and scaling back some of these draconian measures, we really, really need to have a robust re-entry program that's going to actually provide people as they return to society with the kinds of comprehensive resources that are necessary in order to prevent recidivism.

In thinking about the national political discourse around criminal justice reform, there is some popular language around mass incarceration and its impact on black communities. But the "tough on crime," "law and order" rhetoric still lingers. And as you just said, there is this real financial aspect to it, to the point where I've seen some people use that to persuade critics of criminal justice reform: "If you don't care about the human toll, you'll care about the financials of it."

Right. If the rationale is just about fiscal costs, it doesn't allow us to fully conceptualize the entire scope of the problem. I think the fiscal concern argument is what has lead a lot of conservatives to embrace criminal justice reform, because the fact is that these policies have failed, and that they're are costly. And, actually, there are much more cost effective alternatives. The problem is, as we've seen state spending for corrections reduced, the programs that get cut first tend to be services for prisoners. These are the kinds of services actually, that, in many respects, the First Step Act seeks to expand within prisons – but only for people who are convicted of eligible crimes.

There's another moral component to our mass incarceration problem that is deeply linked to educational access. The greatest determinant of future incarceration is one's educational level. If you do not have a high school diploma, you have a much higher chance of spending at least part of your life behind bars than somebody that does have a high school diploma.

Then, of course, the deep racial dimensions of these policies and the ways in which low-income communities of color have been targeted for decades by various policing surveillance and incarceration programs, as well as harsh sentencing provisions that really created a new level of racial disparity with the introduction of the 100:1 mandatory-minimum sentencing guidelines for crack cocaine in 1986. And then possession of crack cocaine in 1988, which, of course, was enforced and disproportionately impacted black Americans – even though the majority of crack users at the time were white Americans. So if we really, really want to deal with the underlying root causes of these problems, of course, part of it is the fiscal burden of mass incarceration. But it's also discrimination and racially-targeted policies – racially-discriminatory policies within the justice system itself.

Let's go back to your research, which has been a huge contribution to understanding the historical narrative of mass incarceration. But I feel like it hasn't been integrated into the mainstream media's portrayal. We have this narrative of present-day mass incarceration with a prison population of more than 2.3 million people, because of Richard Nixon and the beginning of the War on Drugs in the early 70's, which then became fully realized under Ronald Reagan. Why is this framing inaccurate, and also how does this harm us in thinking about mass incarceration and criminal justice reform now to not remember history correctly?

Even more so than Nixon, the key markers, or what's considered in the kind of dominant popular and even political narrative, is that it's an electoral tactic that conservative politicians came to embrace "law and order" and that the problem really took off during the Reagan administration. Then, of course, I think especially in the context of the election of 2016, the impact of the 1994 Crime Bill really became part of the discussion, which is the most directly responsible legislation for the prison population explosion that we saw.

But it's a much more difficult narrative when we push back to the introduction of and the modernization and expansion of American policing and prison systems during the height of progressive social change and the Civil Rights Movement. At the same time that what we collectively see as the most progressive pieces of legislation – the War on Poverty, things like Head Start, the Voting Rights Act – are being enacted alongside a new level of investment on the part of the federal government in police and courts and prison systems.

How does this change our national narrative if the week before Johnson sends the Voting Rights Act to Congress, Johnson declares the War on Crime? In thinking about the relationship between the expansion of the federal government's role in the lives of low income people through both anti-poverty, anti-crime programs in the 1960s, in the context of civil rights protests and landmark civil rights legislation, as well as incidents of urban unrest, that really points us towards a more systemic problem with the ways in which policy makers have decided to respond to unequal social conditions with more policing, and surveillance and incarceration.

In recent years, with the opioid crisis and many other political factors, there is somewhat of a new understanding of drug addiction and drug crimes to the point where, as you said, conservatives and law enforcement have highlighted the reducing of mandatory-minimum sentences for drug offenses in the First Step Act, as opposed to granting relief in any way to violent criminals as a counter to Tom Cotton and some of these other critics of the bill. It produces this really harmful hierarchy around reform that renders invisible or even outright scapegoats people serving sentences for violent crimes and really absorbs the system and our nation of structural inequalities. Why is this tactic deployed on both sides of the aisle so frequently?

I think that there's still a debate about whether or not people deserve second chances and a real lack of understanding of the kind of socio-economic factors that contribute to violent crime.

I like to think of black women, in many ways, as the primary casualties of the War on Drugs, because even though women as a whole are only about eight percent of the entire prison system, there are more black women serving time for drug offenses than any other group.

Most of the women who are incarcerated for violent crimes – those incidents have to do with them protecting themselves against violent partners. That's just one example of the ways in which we could think about: What are the larger factors? What are the root causes that lead people to crimes of violence?

One of the logics of punishment is that it's retributive – that the eye-for-an-eye function of the criminal justice system is something that has guided our principles of punishment historically. So I think that there's debate as to who is deserving of what kinds of punishment, the fear and the problem with the ways in which this legislation in particular – but historically, we have these kinds of categories of "deserving" or "undeserving prisoners" – is that this legislation then leads to even harsher provisions for people who are convicted of violent crimes.

The problem is, again, that even if we de-carcerate every single person currently serving a state or federal prison sentence for a drug offense, the United States would still be home to the largest prison population in the world. So ending the War on Drugs alone – this focus on non-violent offenders is not going to effectively deal with our problem of over incarceration in this country.

Also, in terms of thinking about placing violence and violent crime in a larger perspective, most perpetrators – most people who are convicted of violent crime – are also victims themselves. We don't necessarily think about that. In a lot of ways, what's going to have to happen for really meaningful reform is a new conversation about crime itself and a new conversation about the causes of violence in order to think about how we could create and implement effective preventative programs.

To go back to some of the specifics of the bill in its current form, the NAACP Legal Defense Fund raised some concerns about the use of risk assessment tools to determine which offenders are low-risk to recidivate, because it so often produces these racially-biased results. Can you talk about that?

Again, the thrust to the bill is really on issues of re-entry and that is based on risk assessment. The success of this bill, while promising in many respects, is really going to depend on what that risk assessment language looks like in the bill.

The bill states explicitly risk assessment needs to be based on empirical studies and statistics, and that private companies can develop tools to aid correctional authorities in these risk assessments. But we know algorithmic policing tends not to favor people of color.

I think – for me – that's one of the most troubling aspects of the bill. Who determines whether or not someone is a risk to society? Is it going to be prison authorities? Is it going to be trained counselors and social workers? It's troubling. So the bill does not clearly outline what the mechanism for that would be and the gestures that it does seem to lean towards relying on private companies to develop algorithms and programs that, again, may reify and even deepen some of the disparities that we're already looking at in terms of who gets released and who gets sentenced for how long.

Ultimately this bill is modest, and so often these proposals do feel very incremental. How do we negotiate the need for a total criminal justice overhaul and also balance the immediate concern for the livelihoods of the millions of people imprisoned?

I do think, at the end of the day, every bit does count.

Depending on what the home release supervision looks like – being home with your family. and being able to get out of prison sooner and begin to get your ducks in a row so that you can truly re-enter society – these are really important provisions and can change the lives of individuals, and families and communities. So, in that sense, the bill is incredibly important. And it does set a precedent for, not only the very, very beginnings of de-carceration, but also rethinking our sentencing provisions and why we keep people in prison as long as we do.

Anything that supports earlier release for people, I think, is incredibly important. The fact that the president now supports these reforms – I think it really behooves Congress to move now. And I hope that this will be another first step towards a new level of criminal justice reform in this country, because it's so very badly needed.

By Rachel Leah

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