August 15, 2019

First Step Act Already Shows Success

The first steps in the right direction, but more steps are needed.

At the end of the 115th Congress, the First Step Act (FSA) was signed into law and noticeably changed the criminal justice landscape. This bipartisan, ABA-supported package of sentencing and corrections reforms sought to walk back the harsher “tough on crime” and “war on drugs” policies developed in the 1990s that failed to produce promised results. Only in its first year of implementation, the FSA has delivered some great success stories, but important provisions have been stalled.

Prior to the FSA, certain non-violent, lower level offenders faced overly harsh mandatory minimum sentences. Once in prison, these offenders found poorly resourced counselling services, training, and other programs that would help them transition back into society, find jobs, or rejoin their families upon their release. As a result, their efforts to reenter society often failed and recidivism rates were high. These laws also had a disparate impact on communities of color. Advocates had been fighting for significant sentencing and correction reforms for years, but with limited success. Finally, a bipartisan groundswell supported by President Trump lifted the FSA over its opposition at the end of the 115th Congress and it became law on December 21, 2018.

Only eight months after enactment, the FSA has already produced positive results. The Act has given judges greater discretion to depart from certain mandatory minimum sentences, ended solitary confinement for juveniles, and expanded opportunities for those in prison to improve themselves, stay connected to their families, and make successful transitions back into society at the completion of their sentence. Over 3,000 people have been released from prison early by qualifying for added “good time” credits, and the sentences for another 1,700 have been reduced pursuant to how sentencing for drug offenses is now handled. The Department of Justice has also made funds available to ensure the success of FSA programs.

Not all the FSA’s provisions have been implemented though. The FSA called for the development of a new risk and needs assessment tool to help the Bureau of Prisons identify who might be best suited for job programs, halfway houses, sentence reductions, or early release. Ambiguities in the FSA’s language left some provisions open to interpretation, prompting the Department of Justice to delay implementation of them until the new assessment tool was created. The ABA Criminal Justice Section submitted comments on the development of this assessment tool, and Members of the House of Representatives expressed their concerns and questions, as well.

On July 19, 2019, the Department of Justice released the Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN) with a comprehensive report detailing their process. Questions remain over how PATTERN will operate in certain circumstances, but once-operational, the remaining provisions of the First Step Act will at last go into action. Earlier this month, the American Bar Association adopted policy supporting the prompt implementation of the new risk assessment tool and urging that key changes to sentences under the First Step Act be applied retroactively to those already sentenced for covered offenses.

The FSA is a major step to comprehensively reform the ineffective laws and policies that exist in our criminal justice system, but more steps are needed. Several bills have already been introduced in the 116th Congress proposing additional reforms, however the House and Senate Judiciary Committees are focused on overseeing implementation of FSA before turning to new and possibly more controversial changes. Promptly implementing PATTERN would be yet another positive step, but it will take a greater commitment among coalitions, Congress, and the White House to find the common ground necessary to further advance this imperative work.

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